IN THE CASE OF:	  

		BOARD DATE:	        31 July 2008

		DOCKET NUMBER:  AR20080004059 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his records be corrected to show he was promoted to first lieutenant (1LT), O-2.

2.  The applicant states that he was commissioned in July 2000.  He was not properly transferred to the Individual Ready Reserve (IRR) in 2003 and therefore missed promotions.  He completed the Officer Basic Course (OBC) and is looking to attend the Captain’s Career Course (CCC).  He is back in the District of Columbia Army National Guard and is still a second lieutenant (2LT), O-1. 

3.  The applicant provides two officer evaluation reports (OERs), one for the period ending 14 August 2001 and one for the period ending 19 August 2002; ARNG appointment orders; his appointment physical examination; a Federal Recognition packet, dated 21 June 2000; a National Guard Bureau (NGB) Form 337 (Oaths of Office), dated 15 August 2000; an Officer Candidate School (OCS) completion certificate; Federal Recognition orders, dated 5 October 2000; separation orders, dated 19 February 2003; Federal Recognition Orders, dated 14 March 2003; and Federal Recognition orders, dated 30 July 2007.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 
3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  After having had prior enlisted service, the applicant was appointed a 2LT in the ARNG effective 15 August 2000 and granted Federal Recognition as a 2LT in the ARNG effective 15 August 2000.

3.  Effective 19 February 2003, the applicant was separated from the ARNG and transferred to the IRR.  Effective 19 February 2003, Federal Recognition was withdrawn.

4.  Effective 18 July 2007, the applicant transferred to the ARNG in the rank and grade of 2LT, O-1, and was granted Federal Recognition that date.

5.  In the processing of this case, an advisory opinion was obtained from the Personnel Division, NGB.  That office recommended approval of the applicant’s request to be promoted to 1LT effective 15 August 2002 with all due back pay and allowances.  That office noted the applicant’s records contained no derogatory documents that would have made him ineligible for promotion prior to his being transferred to the IRR.

6.  A copy of the advisory was provided to the applicant for comment.  He did not respond within the given time frame.

7.  National Guard Regulation 600-100 prescribes policies and procedures governing, in part, the appointment, Federal Recognition, and separation of commissioned officers of the ARNG.  Chapter 8 states the promotion of officers in the ARNG is a function of the State.  A commissioned officer promoted by State authorities has a State status in the higher grade under which to function.  However, to be extended Federal Recognition in the higher grade, the officer must have satisfied the requirements prescribed in this chapter.  

8.  National Guard Regulation 600-100, paragraph 8-6, states the wearing of insignia of the higher grade is not authorized until Federal Recognition has been extended by the Chief, National Guard Bureau.  Paragraph 8-15 states that an ARNG commissioned officer, not on active duty, who is selected for promotion as a Reserve commissioned officer of the Army resulting from mandatory 
consideration may be extended Federal Recognition in the higher grade subject to several conditions, including that the officer has reached promotion eligibility date and that the officer is promoted in a State status to fill an appropriate position vacancy in the higher grade.  

9.  Army Regulation 135-155 provides policy and procedures for the selection and promotion of commissioned officers of the Army National Guard of the United States (ARNGUS) and the U. S. Army Reserve (USAR).  In pertinent part, it states that a 2LT will be considered for promotion without review by a selection board.  The officer’s records will be screened to determine eligibility for promotion to the next higher grade.  This will be determined far enough in advance to permit promotion on the date promotion service is completed.  For promotion to 1LT, this will be after 2 years of service in the rank of 2LT.  A 2LT is normally required to have completed the resident OBC before becoming eligible for promotion to 1LT.

10.  Army Regulation 135-155 states promotion reconsideration by a special selection board may only be based on erroneous non-consideration or material error which existed in the records at the time of consideration.

11.  Title 10, U. S. Code, section 14304, states officers shall be placed in the promotion zone for that officer’s grade and competitive category and shall be considered for promotion to the next higher grade by a promotion board far enough in advance of completing the years of service in grade specified so that, if the officer is recommended for promotion, the promotion may be effective on or before the date on which the officer will complete those years of service.  The maximum years of service for promotion to the rank of captain is 5 years.  

12.  Title 10, U. S. Code, section 14316(d), states that if, on the date on which an officer of the ARNGUS who is on a promotion list as a result of being recommended by a mandatory selection board is to be promoted, the officer has not been promoted to fill a vacancy in the higher grade in the ARNG, the officer's Federal Recognition in the officer's Reserve grade shall be withdrawn and the officer shall be promoted and transferred to the USAR as appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was appointed a 2LT in the ARNG effective 15 August 2000.  He would have met the time in service requirement for promotion to 1LT on       15 August 2002.  The advisory opinion noted the applicant’s records contained no derogatory documents that would have made him ineligible for promotion prior 
to his being transferred to the IRR.  Therefore, it would be equitable to show     he was promoted to 1LT and granted Federal Recognition as a 1LT effective     15 August 2002 with all due back pay and allowances.

2.  If the applicant had been promoted to 1LT in August 2002, he should have been eligible for consideration for promotion to captain with a promotion eligibility date in August 2007.

BOARD VOTE:

__xx____  __xx____  ____xx__  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all State Army National Guard records and Department of the Army records of the individual concerned be corrected by:

     a.  showing he was promoted to 1LT and granted Federal Recognition as a 1LT effective 15 August 2002 with all due back pay and allowances; and

     b.  if eligible, submitting his records to a duly constituted special selection board under the applicable criteria for consideration for mandatory promotion to captain.



      ________xxxx__________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080004059



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ABCMR Record of Proceedings (cont)                                         AR20080004059



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