IN THE CASE OF:	  

		BOARD DATE:	       21 JULY 2009

		DOCKET NUMBER:  AR20080020105 


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 the date of his initial appointment to the rank of second lieutenant be backdated to 16 April 2005 and that he be furnished all back pay and allowances as a result of this correction.

2.  The applicant states that he graduated from Officer Candidate School (OCS) in April 2005; however, he did not get commissioned as a second lieutenant until August 2006.  He states that the delay in his commissioning puts him 16 months behind his peers, which includes 16 months without pay as a commissioned officer.  He states that he was initially on an 18-month traditional course; however, the state of Texas changed it to a 12-month course without implementing a way to expedite the security clearances.  He states that he finally got his security clearance in April 2006, which was 1 year after graduation.  He states that 158 Soldiers attended the course and 44 graduated.  He states that out of the 44 individuals who graduated only 20 were commissioned and the other 24 maintained their original rank prior to attending the course.  He believes this is unjust because he did not get commissioned on the date that he graduated.

3.  The applicant provides no additional documentation in support of his application.





CONSIDERATION OF EVIDENCE:

1.  The applicant had prior enlisted service in the Texas Army National Guard (TXARNG).

2.  The available records show the applicant graduated from OCS on 16 April 2005.

3.  The applicant’s Joint Clearance Access and Verification System (JCAVS) form shows his security clearance was granted on 7 March 2006.

4.  On 15 August 2006, a Federal Recognition Board was held by the TXARNG to determine if the applicant was qualified to be awarded Federal Recognition.  The proceedings indicated that the applicant was satisfactory in his physical qualifications, moral character and general qualifications.  

5.  On 15 August 2006, the applicant executed an Oaths of Office as a second lieutenant in the TXARNG and he was granted temporary Federal Recognition.

6.  Departments of the Army and the Air Force, National Guard Bureau (NGB) Federal Recognition Special Orders Number 3 AR, dated 5 January 2007, extended the applicant permanent Federal Recognition for his initial appointment to the rank of second lieutenant, effective 15 August 2006.

7.  On 17 December 2007, the applicant successfully completed the Quartermaster Basic Officer Leadership Course Phase III.

8.  Departments of the Army and the Air Force, NGB Federal Recognition Special Orders Number 220 AR, dated 26 August 2008, extended the applicant Federal Recognition for the purpose of promotion to the rank of first lieutenant, effective 15 August 2008.

9.  During the processing of this case an advisory opinion obtained from the Chief, Personnel Division, NGB recommends that the applicant’s initial appointment date be adjusted to 7 March 2006, the date that his security clearance was granted by the Department of the Army Central Clearance Facility, in accordance with his JCAVS form.  The Chief, Personnel Division, also recommends that the applicant’s effective date of promotion to first lieutenant be adjusted to 7 March 2008 and that he receive all back pay and allowances.  Additionally, the Chief, Personnel Division, states that applicants must have a final security clearance prior to appointment or reappointment as commissioned officers in the Army National Guard.  As an exception, applicants for one of the special branches -- Medical, Chaplain, or Judge Advocate -- may be commissioned prior to completion of the National Agency Check/Department National Agency Check Inquiries provided that special provisions are met.

10.  A copy of the advisory opinion was provided to the applicant on 17 March 2009 for his comment and/or rebuttal.  He concurred with the advisory opinion on 25 March 2009.

11.  National Guard Regulation 600-100, chapter 2, paragraph 2-7(I) states that applicants must have a final security clearance prior to appointment or reappointment as commissioned officers in the Army National Guard.  

12.  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 states commissioned officers of the ARNG are appointed by 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.  

13.  Paragraph 2-1 of Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) states, in pertinent part, an officer in the grade of second lieutenant 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 far enough in advance to permit promotion on the date the promotion service is completed in compliance with table 2-1 or table 2-3 of this regulation.

14.  Table 2-1 of Army Regulation 135-155 states the minimum time in grade as a second lieutenant for promotion to first lieutenant (at the time) is 2 years.

15.  Table 2-2 of Army Regulation 135-155 states, in pertinent part, second lieutenants must complete a resident officer basic course to be eligible for promotion to first lieutenant.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the date of his initial appointment to the rank of second lieutenant should be backdated to 16 April 2005 and that he be furnished all back pay and allowances.  This action would require that an amendment be made to the effective date on the orders initially appointing him to the rank of second lieutenant.

2.  Although the applicant was not extended Federal Recognition for his initial appointment to the rank of second lieutenant until 15 August 2006 he met the criteria for appointment to the rank of second lieutenant when his security clearance was granted on 7 March 2006.

3.  In accordance with the applicable regulation individuals must have a final security clearance prior to appointment.  Therefore, it would be appropriate to correct the applicant’s records to show he was extended Federal Recognition for appointment to the rank of second lieutenant, effective 7 March 2006.

4.  Consequently, the applicant was eligible for promotion to the rank of first lieutenant 2 years after his initial appointment providing he met the educational and time in grade criteria.  

5.  His records show that he successfully completed the Quartermaster Basic Officer Leadership Course Phase III, on 17 December 2007, and that he was eligible to be extended Federal Recognition for appointment to the rank of second lieutenant, effective 7 March 2006.  Therefore, his records should be corrected to show he was awarded Federal Recognition for promotion to the rank of first lieutenant, effective 7 March 2008.  

6.  In view of the foregoing, it would now be in the interest of justice to correct the applicant’s records 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 Army National Guard records and the Department of the Army records of the individual concerned be corrected by:
   a.  amending National Guard Bureau Special Orders Number 3 AR, dated 5 January 2007, to show the individual was extended Federal Recognition effective 7 March 2006 in the rank of second lieutenant;
   
   b.  amending National Guard Bureau Special Orders Number 220 AR, dated 26 August 2008, to show he was extended Federal Recognition effective 7 March 2008 in the rank of first lieutenant; and
   
   c.  awarding him any and all back pay and allowances that he may be due as a result of these 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 backdating his initial appointment to the rank of second lieutenant to 16 April 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)                                         AR20080020105



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ABCMR Record of Proceedings (cont)                                         AR20080020105



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