IN THE CASE OF:	

		BOARD DATE:	  26 March 2009

		DOCKET NUMBER:  AR20080020079 


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 reconsideration of the Board's partial relief of his previous request for correction of his date of rank for second lieutenant (2LT) from 16 November 2006 to 16 April 2005.  He also requests his eligibility date for promotion to first lieutenant (1LT) be adjusted to 16 April 2007.

2.  The applicant states, in effect, that he completed and graduated from Officer Candidate School (OCS) with class 48 from the state of Texas on 16 April 2005.  He states that the State Regional Training Institute (RTI) failed to submit his security clearance request and file the Federal recognition in a timely manner for commissioning.

3.  The applicant provides a copy of two (undated) memoranda written in response to the National Guard Bureau (NGB) advisory opinion from the proceedings of the original application; Texas Military Forces Army National Guard (TXARNG) 285-1014, dated 12 October 2006; TXARNG Orders 
285-1027, dated 12 October 2006; TXARNG Orders 285-1081, dated 12 October 2006; and a copy of the previous board proceedings in support of this application.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080011384 on 4 December 2008.
2.  The documents provided by the applicant are new evidence, which requires that the Board reconsider his request.

3.  In the Board's first consideration of this case, it was shown the applicant graduated from OCS on 16 April 2005 and met the school requirement to be commissioned as a 2LT in the Army National Guard (ARNG).

4.  Based in part on the NGB advisory opinion and the applicant's concurrence with the advisory opinion, the Board recommended showing that the applicant's appointment in the rank of 2LT/pay grade O-1 was effective 3 May 2006, promoting the individual to the rank of 1LT/pay grade O-2 effective 3 May 2008, and awarding the individual all back pay and allowances he may be entitled to as a result of the above corrections.  The Board further determined that the evidence presented was insufficient to warrant a portion of the requested relief.  As a result, the Board recommended denial of so much of the application that pertained to additional changes to his date of rank.

5.  The original application contained Oaths of Office dated 3 May 2006 and 16 November 2006 granting him temporary Federal recognition as a 2LT in the TXARNG.

6.  The applicant provided as new evidence in support of this reconsideration a signed Oath of Office dated 16 April 2005 granting him temporary Federal recognition as a 2LT and TXARNG Orders Number 285-1082 appointing him in the TXARNG effective 16 April 2005.  However, this new evidence is not found in the applicant's official military personnel file (OMPF) and it is unclear why these two documents were not submitted with the original application.  Additionally, the applicant provided the following three orders:  TXARNG Orders 285-1014, dated 12 October 2006, with the effective date of 4 October 2006; TXARNG Orders 285-1027, dated 12 October 2006, amending TXARNG Orders 285-1014 to read the effective date of 16 April 2005; and TXARNG Orders 285-1081, dated 12 October 2006, revoking TXARNG Orders 285-1014 as new evidence in support of this application for reconsideration.  TXARNG Orders 285-1014 were ultimately revoked; therefore, these three orders will not be further discussed in this case.

7.  There is no evidence the applicant received permanent Federal recognition for initial appointment as a 2LT from the NGB within the 6-month period following the Oaths of Office dated 16 April 2005 or 3 May 2006 as required by U.S. Army and ARNG regulations.

8.  The applicant's records show that he was not awarded a secret security clearance until 15 December 2005.
9.  In connection with the processing of the applicant's original case, an advisory opinion, dated 25 September 2008, was obtained from the Chief, Personnel Division, NGB.  This official recommended that the applicant's initial appointment date of rank be adjusted to 3 May 2006 and that he be promoted to 1LT effective 3 May 2008.  The NGB official further recommended 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 on 3 May 2006.

	a.  On 2 October 2008, the applicant was provided a copy of the NGB advisory opinion in order to have the opportunity to reply to its contents.  The original Board proceedings indicate that the applicant concurred with the advisory opinion (not signed).

	b.  The applicant provided two new (undated) responses to the NGB advisory opinion.  In one response, he indicates he did not agree with the advisory opinion and argues that he was denied date of rank, promotion, and pay commensurate with his peers through no fault of his own.  In the other response he indicates that the S1 informed him that the date of rank is determined by the date of the state appointment orders.

10.  National Guard Regulation 600-100 (Commissioned Officer - Federal Recognition and Related Personnel Actions) provides procedures for processing all applications for Federal recognition.  Paragraph 2-1 of this regulation 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 ARNG of the United States if they have not already accepted such appointment.

11.  National Guard Regulation 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 regulation states that temporary Federal recognition upon appointment establishes the authorized grade to be used by all officers in their Federally recognized status.



12.  National Guard Regulation 600-100, paragraph 2-7i, in pertinent part, states that applicants must have a final secret clearance prior to appointment as commissioned officers in the ARNG.

13.  National Guard Regulation 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.

14.  National Guard Regulation 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 (Proceedings of a Federal Recognition Examining Board (ARNG)) 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.

15.  Army Regulation 135-155 (Army National Guard and U.S. Army Reserve Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes the policies and procedures for promotion of Reserve and ARNG officers.  This regulation specifies that a qualified 2LT 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 the Officer Basic Course.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his date of rank to 2LT is incorrect and that it should be changed from 16 November 2006 to 16 April 2005 was previously 


considered by the Board and he was granted partial relief as a matter of equity.  While the evidence of record confirms that the applicant graduated from OCS on 16 April 2005, it also shows that the applicant did not hold a secret security clearance at that time.

2.  The applicant's contention that the RTI staff was not timely in processing his request for a security clearance and commissioning has been considered.  If the RTI staff was entirely at fault, that is truly regrettable.  However, the fact remains that a secret security clearance is required for appointment.

3.  The applicant's temporary Federal recognition based on a 3 May 2006 oath of office expired and the applicant subsequently signed a second Oath of Office dated 16 November 2006.  

4.  A third signed Oath of Office dated 16 April 2005 and TXARNG orders amending his appointment date in the TXARNG to 16 April 2005 were newly provided with this application for reconsideration.  However, because he did not have his clearance until December 2005 that Oath of Office and those orders were not valid.

5.  It is regrettable that the applicant did not have a security clearance by his graduation from OCS and that he did not sign an Oath of Office which was Federally recognized until 16 November 2006.  However, the evidence is insufficient to show that an injustice occurred and therefore no basis is found for correcting the applicant's records beyond that which was previously recommended to show a 3 May 2006 2LT date of rank.

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 to amend the decision of the ABCMR set forth in Docket Number AR20080011384, dated 4 December 2008.



      ___________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)                                         AR20080020079



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ABCMR Record of Proceedings (cont)                                         AR20080020079



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