IN THE CASE OF:	   

		BOARD DATE:	        9 December 2008

		DOCKET NUMBER:  AR20080016580 


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 that his date of rank (DOR) for first lieutenant be adjusted to 30 September 2005 with all back pay and allowances.

2.  The applicant states, in effect, that Table 2-1 (Note 1) of Army Regulation 135-155 exempts lieutenants commissioned through the Early Commissioning Program (ECP) from the educational requirement of completion of the Officer Basic Course (OBC) for promotion to first lieutenant.  He contends that his promotion was denied by his chain of command on the grounds that National Guard Regulation 600-100 prohibited second lieutenants from promotion to first lieutenant prior to completion of OBC.  He also points out that National Guard Regulation 600-100 also provides an exception to this requirement.

3.  The applicant provides, in support of his application, memoranda, dated
24 September 2008, 19 August 2008, and 29 May 2004; an Oath of Office, dated 29 May 2004; an Oaths of Office, dated 30 May 2004; orders, dated 27 August 2004 and 19 August 2008; a DA Form 1059 (Service School Academic Evaluation Report), dated 20 February 2008; a transcript; an Army Senior Reserve Officers' Training Corps (ROTC) Scholarship Cadet Contract; reassignment orders, dated 25 August 2004; and a transcript record.  






CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed through the ECP as a second lieutenant in the U.S. Army Reserve (USAR) on 29 May 2004.  He executed an Oaths of Office on 
30 May 2004 as a second lieutenant in the Minnesota Army National Guard and was awarded temporary Federal Recognition.

2.  Departments of the Army and the Air Force, National Guard Bureau, Special Orders Number 211 AR, dated 27 August 2004, show the applicant was granted Federal Recognition in the Army National Guard effective 30 May 2004 for transfer from the USAR.   

3.  The applicant completed the Basic Officer Leaders Course on 21 February 2008. 

4.  Departments of the Army and the Air Force, National Guard Bureau, Special Orders Number 214 AR, dated 19 August 2008, show the applicant was granted Federal Recognition for promotion to first lieutenant effective 22 February 2008.   

5.  In the processing of this case, a staff advisory opinion was obtained from the National Guard Bureau.  That office recommends partial approval of the applicant’s request by adjusting his promotion effective date and DOR to 30 May 2006.  Furthermore, that office recommends that he receive all back pay and allowances as a result of the adjusted promotion effective date.  

6.  The advisory opinion points out that the applicant successfully completed the Early Commissioning Program, that he signed an Oath of Office in the USAR on 29 May 2004, that he received Federal Recognition on 30 May 2004, that he completed the OBC on 21 February 2008, and that he was promoted to first lieutenant on 22 February 2008.  The opinion states that the applicant had 
24 months of commissioned service on 30 May 2006 and met the two-year time in grade requirement for promotion to first lieutenant in accordance with Army Regulation 600-100, chapter 8, paragraph 8a.  In addition, Army Regulation 
135-155, Table 2-2, Note 1, states "Officers assigned to Control Group (OADO) (see para 2-8b(1)) and former OADO officers including Early Commissioning Program (ECP) participants transferred to the Control Group (Annual Training) or the Selected Reserve preceding their promotion to 1LT.  Promotion under these circumstances does not negate the requirement to complete the resident officer basic course at a subsequent date."

7.  The advisory opinion also points out that the Department of the Army Policy Memorandum reducing the time in grade for promotion to first lieutenant to 
18 months was not in effect until 19 August 2008. 
8.  A copy of the advisory opinion was forwarded to the applicant for comment and possible rebuttal.  On 9 November 2008, the applicant responded and acknowledged that he understood the recommendation and believes "this to be the best course of action."  He indicated that he could not submit his packet to the special review board for captain until his DOR for first lieutenant was resolved.  

9.  National Guard Regulation 600-100 prescribes policies and procedures governing, in part, the appointment, Federal Recognition, and separation of commissioned officers of the Army National Guard.  Chapter 8 states that the promotion of officers in the Army National Guard 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.

10.  Table 2-1 of Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) states that the minimum time in grade as a second lieutenant for promotion to first lieutenant is 2 years.

11.  Table 2-2 of Army Regulation 135-155 states, in pertinent part, that second lieutenants must complete a resident OBC to be eligible for promotion to first lieutenant.  Note 1 of this table states that "Officers assigned to Control Group (OADO) (see para 2-8b(1)) and former OADO officers including Early Commissioning Program (ECP) participants transferred to the Control Group (Annual Training) or the Selected Reserve preceding their promotion to 1LT.  Promotion under these circumstances does not negate the requirement to complete the resident officer basic course at a subsequent date.  Officers enrolled in a resident basic course, who are otherwise eligible, will also be considered to have satisfied the education requirement for promotion to 1LT."

12.  A Department of the Army Policy Memorandum, dated 19 August 2008, authorizes Reserve Component second lieutenants on the reserve active-status list to be promoted with a minimum of 18 months time in grade and completion of the Basic Officer Leadership Course.  The policy is effective 19 August 2008. 

13.  Table 1-4 of the Department of Defense Financial Management Regulation, Volume 7A, Chapter 1, dated April 2007, states that when a member is an officer and the action is promotion to a grade above O-1 in the Uniformed Services then the effective date of increase in pay and allowances is the effective date of the promotion. 


DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows the applicant was appointed a second lieutenant in the USAR on 29 May 2004.  He was appointed a second lieutenant in the Army National Guard and granted Federal Recognition in the rank of second lieutenant on 30 May 2004.  Evidence of record also shows that he was promoted to first lieutenant and granted Federal Recognition for promotion to first lieutenant effective 22 February 2008.   

2.  The governing regulation states that a second lieutenant will be considered for promotion prior to reaching two years of commissioned service and will be extended Federal Recognition in the grade of first lieutenant on the date he or she completes two years of time in grade, provided they are fully qualified and recommended for promotion.  The governing regulation also states that ECP participants transferred to the Selected Reserve preceding their promotion eligibility to first lieutenant are not required to meet the educational requirement for promotion to first lieutenant and that promotion under these circumstances does not negate the requirement to complete the resident officer basic course at a subsequent date.  The applicant completed the OBC in February 2008.  

3.  Based on the foregoing, it would be equitable to correct the applicant’s military records to show his effective date of promotion to first lieutenant is 28 (not 30) May 2006 with a DOR of 28 May 2006.  It would also be equitable to show he was granted Federal Recognition for promotion to first lieutenant effective 
28 May 2006. 

4.  Since the Department of the Army Policy Memorandum reducing the time in grade for promotion to first lieutenant to 18 months was not in effect until 
19 August 2008, there is no basis for granting the applicant's request to adjust his DOR to 30 September 2005.

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 Army National Guard records and the Department of the Army records of the individual concerned be corrected by amending Departments of the Army and the Air Force, National Guard Bureau, Special Orders Number 214 AR, dated
19 August 2008, to show that he was promoted to first lieutenant with a DOR and effective date of 28 May 2006 and granted Federal Recognition effective 28 May 2006 in the grade of first lieutenant.

2.  The Board also recommends that the applicant be paid all back pay and allowances due as a result of these corrections.

3.  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 adjusting his DOR to 
30 September 2005.



      _______XXX_______________
       	   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)                                         AR20080016580



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ABCMR Record of Proceedings (cont)                                         AR20080016580



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