IN THE CASE OF:	  

		BOARD DATE:	  	  4 December 2008

		DOCKET NUMBER:  AR20080011384 


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, an adjustment to his date of rank (DOR) for Second Lieutenant (2LT) from 16 November 2006 to 16 April 2005.  He also requests promotion to First Lieutenant (1LT).  

2.  The applicant states, in effect, that he completed and graduated from Officers Candidate School (OCS) with class 48 in the state of Texas on 16 April 2005.  The State Regional Training Institute (RTI) failed to file for Federal Recognition in an accurate or timely manner for commissioning.  During the same period, personnel changes and oversight at the RTI resulted in his Federal Recognition application being lost.  Through no fault of his own he had to resubmit his application.  

3.  In support of his application, the applicant provides a copy of his OCS Graduation Certificate, a copy of the Oath of Office, e-mail/transcripts and a copy of his DA Form 4187.  The DOR Report the applicant states that he provided was not included with his application.   

CONSIDERATION OF EVIDENCE:

1.  The applicant’s available military records show that the applicant graduated from OCS and met the school requirement to be commissioned as a 2LT in the Army National Guard (ANG) on 16 April 2005.  


2.  On 3 May 2006, the applicant signed an Oaths of Office as a 2LT in the ANG of the state of Texas (TXARNG) and was granted temporary Federal Recognition.

3.  There is no evidence the applicant received permanent Federal Recognition for initial appointment as a 2LT from the National Guard Bureau (NGB) within the six-month period required by National Guard Regulations.  

4.  The evidence of record shows the applicant executed a second Oath of Office as a 2LT, effective 16 November 2006.  State Order Number 333-1057 was published appointing the applicant in the ARNG.  

5.  The applicant is currently serving on active duty in support of Operation Iraqi Freedom. 

6.  In connection with the processing of this case, an advisory opinion dated 
25 September 2008, was obtained from the Chief, Personnel Division, and NGB. This official recommends that the applicant's initial appointment DOR be adjusted to 3 May 2006 and that he be promoted to 1LT effective 3 May 2008.  The NGB official further, recommends that the applicant receive all back pay and allowances as a result of this adjustment.  The recommendation was based on the Oath of Office the applicant signed upon graduation from the ANG OCS.  Although the applicant graduated from OCS on 16 April 2005, he signed the Oath of Office on 3 May 2006. 

7.  On 4 September 2008, the applicant was provided a copy of the Chief, Personnel Division, National Guard Bureau, advisory opinion in order to have the opportunity to reply to its contents.   On 2 October 2008, the applicant concurred with the advisory opinion (not signed).

8.  National Guard Regulation (NGR) 600-100 (Commissioned Officer - Federal Recognition and Related Personnel Actions) provides procedures for processing all applications for Federal Recognition.  Paragraph 2-1 of this NGR states that commissioned officers of the ARNG are appointed by the several States under Article 1, Section 8, of the U. S. Constitution.  These appointments may be federally recognized by the Chief, NGB under such regulations as the Secretary of the Army may prescribe and under the provisions of this regulation.  Officers who are federally recognized in a particular grade and branch shall be tendered an appointment in the same grade as Reserve commissioned officers of the Army with assignment to the Army National Guard of the United States if they have not already accepted such appointment.


9.  NGR 600-100, paragraph 2-2, states that the effective date of Federal Recognition for original appointment is that date on which the commissioned officer executes the oath of office in the State.  Paragraph 2-3a of this NGR states that temporary Federal Recognition upon appointment establishes the authorized grade to be used by all officers in their federally recognized status.

10.  NGR 600-100, paragraph 2-13, states that temporary Federal Recognition may be extended to an officer who has been appointed in the ARNG of a State and found to be qualified by a Federal Recognition Board pending final determination of eligibility and appointment as a Reserve commissioned officer of the Army.  If not sooner withdrawn or replaced by the granting of permanent Federal Recognition, temporary Federal Recognition will automatically terminate 6 months after the effective date of State appointment.  However, should the initial period of temporary Federal Recognition expire due to administrative processing delays, through no fault of the member, a subsequent Federal Recognition Board should be convened to consider the request again and grant another new period of temporary Federal Recognition, if warranted.

11.  NGR 600-100, paragraph 10-15b, states that temporary Federal Recognition may be granted by a Federal Recognition Board to those eligible when the board finds that the member has successfully passed the examination prescribed herein, has subscribed to the oath of office, and has been appointed by a State order for assignment to a position vacancy in a federally recognized unit of the ARNG.  The Federal Recognition Board will forward the NGB Form 89 and allied documents to The Adjutant General.  When the member is favorably recommended, The Adjutant General will endorse the packet to the NGB.  If the member meets the qualifications and requirements for Federal Recognition, the Chief, NGB extends permanent Federal Recognition to the member in the grade and branch in which the member is qualified.

12.  Army Regulation 135-155, prescribes the policies and procedures for promotion of Reserve and Army Nation Guard officers.  This regulation specifies that a qualified second lieutenant will not be promoted on or before the date of completion of 2 years of promotion service and must meet the educational requirement, completion of OBC.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his DOR to 2LT is incorrect and that it should be changed from 16 November 2006 to 16 April 2005, was carefully considered and found to have partial merit.  The evidence of record confirms that the applicant graduated from OCS on 16 April 2005.  However, he did not sign the original Oaths of Office and was not granted temporary Federal Recognition until 
3 May 2006.  The applicant's Federal Recognition expired and subsequently, on 16 November 2006, the applicant signed the second Oaths of Office.  

2.  NGR 600-100, paragraph 2-2, states that the effective date of Federal Recognition for original appointment is that date on which the commissioned officer executes the oath of office in the State.  Therefore, his DOR should be adjusted to 3 May 2006.  In addition, the applicant is entitled to a review of his pay account to determine any adjustment of pay and allowances that may be due the applicant as a result of this correction.  

3.  In view of the foregoing and based on the 3 May 2006 effective date for 2LT, the applicant would have been eligible for promotion to 1LT on 3 May 2008.  In addition, the evidence of record shows the applicant met the military educational requirement (i.e., completion of the Infantry Officer Basic Course) for promotion to 1LT.  

4.  Army Regulation 135-155 states, in pertinent part, that 2LT's must complete a resident officer basic course to be eligible for promotion to first lieutenant.  Therefore, it is concluded that based on a matter of equity and on the support for favorable consideration expressed by the NGB, Personnel Division, the applicant should be granted relief as recommended.  

5.  In view of the foregoing, the applicant’s TXARNG and Department of the Army records should be corrected as recommended below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ____X____  ____X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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

   a.  showing his initial appointment in the rank of 2LT/pay grade O-2 was effective 3 May 2006;
      
 	b.  promoting the individual to the rank of 1LT/pay grade O-1, effective 3 May 2008.

   c.  awarding the individual all back pay and allowances he may be entitled to as a as a result of the above corrections.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to additional changes to his DOR.  




      _______ _   _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)                                         AR20080011384



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ABCMR Record of Proceedings (cont)                                         AR20080011384



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