IN THE CASE OF:	

		BOARD DATE:	  5 February 2009

		DOCKET NUMBER:  AR20080006660 


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 he be commissioned in the Army National Guard (ARNG), effective February 2002, his original commissioning date, or September 2004, the date his commissioning packet was completed.

2.  The applicant states, in effect, that he has completed all the hurdles and requirements to be commissioned an officer in the United States Army.  He states he has the documents to show completion of all necessary schools and applications.  However, the ARNG still does not recognize him as an officer.

3.  The applicant provides a five page memorandum with seven enclosures in support of his application.

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.  The applicant's military personnel records show he initially enlisted in the Oregon Army National Guard (ORARNG) on 8 December 1989. 
 
3.  Headquarters, ORARNG Orders 299-23, dated 26 October 2001, ordered the applicant to active duty, in the rank of sergeant, to attend Officer Candidate School for the period 11 November 2001 to 23 February 2002.

4.  A DD Form 214 (Certificate of Release or Discharge from Active Duty), issued to the applicant on 20 February 2002 shows he was discharged from the Army/ARNG to accept a commission or warrant in the Army.  The record does not contain any separation orders.

5.  A DA Form 71 (Oath of Office - Military Personnel) shows the applicant took the oath of office as a second lieutenant in the U.S. Army Reserve on 
21 February 2002.

6.  Headquarters, ORARNG Orders 050-024, dated 19 February 2002, 
ordered the applicant to active duty for training in the rank of sergeant for the period 24 February to 23 June 2002 to attend the Infantry Officer Basic 
Course (IOBC).

7.  On 14 June 2002, the applicant completed IOBC and he was released from active duty on 23 June 2002 in the rank of second lieutenant.

8.  Headquarters, ORARNG Orders 284-650, dated 11 October 2003, ordered the applicant to active duty, in the rank of sergeant, effective 12 October 2003, not to exceed 365 days, for Operation Iraqi Freedom.  Headquarters, ORARNG Orders 303-708, dated 30 October 2003, modified the term of active duty to 
12 April 2005.

9.  Joint Force Headquarters, ORARNG, Orders 276-029, dated 2 October 2007, promoted the applicant to staff sergeant/pay grade E-6 effective 29 July 2004.

10.  A DA Form 873 (Certificate of Clearance and/or Security Determination), dated 12 September 2004, shows the applicant was granted a secret clearance.

11.  A DA Form 4836 (Oath of Extension of Enlistment or Reenlistment), dated 10 February 2005, shows the applicant had an expiration term of service (ETS) date of 7 December 2005, and he extended his enlistment in the ORARNG for a period of 6 years.  His new ETS date was established as 7 December 2011.



12.  Headquarters, I Corps and Fort Lewis, Military Personnel Division, Fort Lewis, Washington Orders 081-0076, dated 22 March 2005, show the applicant was released from active duty, not by reason of disability, effective 3 April 2005.  

13.  The DD Form 214 the applicant was issued on 3 April 2005 shows he was honorably released from active duty, in the rank of staff sergeant, due to completion of required active service.  He had completed 1 year, 5 months, and 22 days of active duty.

14.  On 11 October 2005, the applicant was transferred to the California ARNG (CAARNG).

15.  In the processing of this case, an advisory opinion was provided by the National Guard Bureau (NGB), Arlington, Virginia with a memorandum from the ORARNG as an enclosure.  The applicant was provided a copy of this opinion and given 30 days to submit matters in rebuttal; however, the applicant did not respond.

16.  According to the memorandum from the ORARNG, the applicant was not eligible to attend IOBC due to the lack of a final security clearance.  The ORARNG did not complete a state appointment order due to an issue regarding the applicant's security clearance.  The ORARNG was unable to determine how the applicant was sent to IOBC despite the issue of his security clearance.

17.  The NGB concluded the applicant was not eligible for appointment under the provisions of Army National Guard Regulation 600-100 due to his not having a final secret security clearance and recommended denial of his request.

18.  Army Regulation 135-100 (Appointment of Commissioned and Warrant Officers of the Army) establishes responsibility and provides procedures for the appointment of commissioned and warrant offices in the Reserve Components of the Army.  This regulation applies to U.S. Army Reserve (USAR) and Army National Guard Soldiers.  Paragraph 1-6 (Eligibility criteria) of this regulation provides that prior to being tendered an appointment as a commissioned officer the individual must have, as a minimum, a final secret security clearance.

19.  Army National Guard Regulation 600-100 (Commissioned Officer - Federal Recognition and Related Personnel Actions) provides that an individual must have a final secret security clearance prior to appointment or reappointment as a commissioned officer in the ARNG.



DISCUSSION AND CONCLUSIONS:

1.  The applicant was granted a final secret security clearance on 12 September 2004.  Therefore, he was clearly not eligible for appointment as a second lieutenant in the USAR on 21 February 2002 nor was he eligible to attend IOBC in June 2002.  There is no record of the applicant having been commissioned as a second lieutenant in the ORARNG.

2.  Although a DD Form 214, dated 20 February 2002, shows the applicant was discharged to accept a commission, there are no orders available confirming this discharge.  There are also no discharge documents available to show the applicant's removal from an officer status or reenlistment documents returning the applicant to an enlisted status prior to the orders he received to report for active duty effective 12 October 2003 in the rank of sergeant.  However, it is reasonable to conclude, based on subsequent orders for active duty and promotion, that the applicant was in fact removed from an officer status and returned to an enlisted status in the ORARNG.

3.  The applicant's DA Form 4836 shows he maintained an enlisted status from the date he initially enlisted in the ORARNG.

4.  There is no evidence available to show the applicant reapplied for a commission in either the ORARNG or the CAARNG after he received his final secret security clearance.

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ____X___  __X____  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _   X_______   ___
               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)                                         AR20080006660



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ABCMR Record of Proceedings (cont)                                         AR20080006660



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