IN THE CASE OF:	  

		BOARD DATE:	  19 November 2009

		DOCKET NUMBER:  AR20090000543 


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 her initial date of appointment as a second lieutenant (2LT) in the Army National Guard (ARNG) be changed from 
22 September 2008 to 28 July 2005, that her 2LT date of rank (DOR) be changed to 7 June 2004, that she be promoted as a first lieutenant (1LT) effective 11 June 2006, and that she be paid all resulting back pay and allowances.

2.  The applicant essentially states that her initial appointment as a 2LT was never processed and expired after 6 months, and that the North Carolina Army National Guard (NCARNG) did another Federal recognition board and appointed her as a 1LT on 22 September 2008 with a DOR of 1 August 2007 [she was granted 1 year, 1 month, and 21 days of constructive credit].  She also states that this has caused her to be behind her peers by 1 year.

3.  The applicant provides an explanation page showing the reasons behind her name changes; a judgment for divorce, dated 22 February 2006; her most recent marriage certificate, dated 10 October 2006; a National Guard Bureau (NGB) Form 62-E (Application for Federal Recognition as an Army National Guard Officer or Warrant Officer and Appointment as a Reserve Commissioned Officer or Warrant Officer of the Army in the Army National Guard of the United States), dated 6 December 2004; a memorandum, dated 18 July 2005, which appointed a Federal recognition board to be convened on 28 July 2005; an NGB Form 89 (Proceedings of a Federal Recognition Examining Board), dated 18 July 2005; a memorandum, dated 29 August 2005, which recommended the applicant for 
appointment effective 28 July 2005; an NGB Form 337 (Oaths of Office), dated 
28 July 2005; orders, dated 29 August 2005, which appointed her as a 2LT in the ARNG effective 28 July 2005; a DA Form 1059 (Service School Academic Evaluation Report), dated 10 June 2006; an NGB Form 62E, dated 
17 September 2008; a DA Form 71 (Oath of Office - Military Personnel), dated 
22 September 2008; an NGB Form 337, dated 22 September 2008; orders, dated 23 September 2008, as amended by orders, dated 30 September 2008, which appointed her as a 1LT in the ARNG; a DA Form 5074-1-R (Record of Award of Entry Grade Credit [Health Services Officers]), dated 30 September 2008; Federal recognition orders, dated 4 December 2008, which appointed her as a 1LT effective 22 September 2008 with a DOR of 1 August 2007; and a memorandum, dated 12 December 2008, in which the NCARNG requested that the NGB adjust her DOR in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that she was initially appointed as a 2LT in the NCARNG on 28 July 2005 after being found qualified by a Federal recognition board on that date.  Her Official Military Personnel File (OMPF) shows that on 29 August 2005, the NCARNG requested that Federal recognition be extended to her; however, no orders appear to have been issued by the NGB extending her permanent Federal recognition at that time.

2.  The applicant completed the Army Medical Department Officer Basic Course (OBC) on 10 June 2006.

3.  Orders, dated 23 September 2008, issued by the NCARNG again appointed the applicant as a 2LT in the NCARNG.

4.  On 30 September 2008, a DA Form 5074-1-R was completed on the applicant.  This document shows that she was awarded 3 years, 1 month, and 
21 days of prior commissioned service credit for her ARNG service from 28 July 2005 to 21 September 2008 [that period is actually 3 years, 1 month, and 
24 days].  This document also shows that 2 years of that constructive credit was used to appoint her in the rank of 1LT effective 22 September 2008, and that 
1 year, 1 month, and 21 days of excess credit was used to adjust her DOR as a 1LT to 1 August 2007.  This document does not show that she was awarded any credit for advanced education, a baccalaureate education, or credit for professional service.  Her OMPF only shows that she was awarded an associate degree in nursing on 15 May 1997.

5.  Orders, dated 30 September 2008, amended her appointed rank on 
22 September 2008 from 2LT to 1LT.

6.  During the processing of this case, on 29 December 2008, an advisory opinion was obtained from the Personnel Division, NGB.  That office essentially recommended approval of the applicant’s request to adjust her initial appointment as a 2LT from 22 September 2008 to 28 July 2005 with a DOR of
7 June 2004, to be promoted to 1LT effective 11 June 2006, and to receive all back pay and allowances as a result of the promotion to 1LT.

7.  A copy of this advisory opinion was provided to the applicant on 21 January 2009 for information and to allow her the opportunity to submit comments or a rebuttal.  However, the applicant did not provide a response to the advisory opinion.

8.  National Guard Regulation 600-100 (Commissioned Officers – Federal Recognition and Related Personnel Actions), chapter 2 provides, in pertinent part, that the effective date of Federal recognition for original appointment is the date on which the commissioned officer executes the Oaths of Office in the State.  Paragraph 2-3a states that temporary recognition upon appointment establishes the authorized grade to be used by all officers in their federally recognized status.  Paragraph 2-13 of this same regulation 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 appointed as a Reserve Commissioned officer of the Army, if not sooner withdrawn or replaced by the granting of permanent Federal recognition.  

9.  Paragraph 10-15b of National Guard Regulation 600-100 also provides, in pertinent part, 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 Oaths 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 (TAG).  When the member is favorably recommended, TAG will endorse the packet to the NGB.  If the member meets the qualification 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.

10.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) provides, in pertinent part, that the normal time in service requirement for promotion of an ARNG or USAR from 2LT to 1LT is 2 years time in grade (TIG).  This regulation also provides that a 2LT must complete a branch OBC before promotion to 1LT.  
DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her initial date of appointment as a 2LT should be changed from 22 September 2008 to 28 July 2005, that her 2LT DOR should be changed to 7 June 2004, that she should be promoted to 1LT effective 11 June 2006, and that she should be paid all resulting back pay and allowances.

2.  It is clear that administrative oversight through no fault of the applicant was the cause for the errors in the applicant’s initial Federal recognition process.  The applicant was selected by the proper authority for commissioning and she was duly administered her oaths of office on 28 July 2005 as a 2LT.  Therefore, in the interest of justice, she is entitled to correction of her military records to show that she was appointed a 2LT in the NCARNG on 28 July 2005.

3.  The fact that the applicant contends, and the NGB recommends, that the applicant's DOR to 2LT be adjusted from 28 July 2005 to 7 June 2004 was noted.  However, adjusting her 2LT DOR from 28 July 2005 to 7 June 2004, or in other words, for 1 year, 1 month, and 21 days, would essentially amount to a windfall.  The applicant was only awarded constructive credit for her service from 28 July 2005 to 21 September 2008 due to the fact that she had to be reappointed on 
22 September 2008 because her initial Federal recognition process was not successfully completed back in 2005, and that situation is already being corrected by showing that she was appointed a 2LT on 28 July 2005.  As there is no evidence to show that she should receive constructive credit for advanced education, a baccalaureate education, credit for professional service, or prior commissioned service, there is no basis for adjusting her DOR to 2LT from 
28 July 2005 to 7 June 2004.

4.  The applicant's contention, and the NGB's recommendation, that she should be promoted to 1LT effective 11 June 2006 was also noted.  However, her military records are being corrected to show that she was appointed as a 2LT on 
28 July 2005 with a DOR of 28 July 2005, and not a DOR on 7 June 2004.  As a result, her earliest date for promotion to 1LT would be 28 July 2007.  While she completed her OBC on 10 June 2006, she had not met the 2-year time in grade requirement to be promoted to 1LT on 11 June 2006.  As a result, there is no basis for promoting her to 1LT effective 11 June 2006.

5.  The fact that the applicant's military records essentially show that she was appointed as a 1LT with a DOR on of 1 August 2007 was noted.  As she should have been promoted to 1LT effective 28 July 2007, or 5 days earlier, she is entitled to correction of her military records to show that her effective date and DOR to 1LT is 28 July 2007 instead of 1 August 2007, and she is entitled to any back pay and allowances as a result of this adjustment in her effective date and DOR to 1LT.

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 all Department of the Army records of the individual concerned be corrected by:

	a.  showing that she was appointed as a 2LT in the NCARNG on 28 July 2005; and

	b.  showing her effective date and DOR as a 1LT is 28 July 2007 instead of 
1 August 2007, and paying her any back pay and allowances as a result of this adjustment.

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:

	a.  adjusting her DOR as a 2LT from 28 July 2005 to 7 June 2004; and

	b.  promoting her to 1LT effective 11 June 2006.



      __________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)                                         AR20090000543



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ABCMR Record of Proceedings (cont)                                         AR20090000543



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