IN THE CASE OF:	

		BOARD DATE:	20 August 2009  

		DOCKET NUMBER:  AR20090002693 


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

2.  The applicant states that he believes that his date of rank is unjust due to the repeated misplacement of his security clearance paperwork which caused a significant delay in his commissioning as a Military Intelligence officer.  He states that once an individual completes Officer Candidate School (OCS) he/she cannot be commissioned without a security clearance.

3.  The applicant provides a memorandum requesting an extension of his commissioning deadline, dated 6 February 2007; an unofficial time-line of the processing of his security clearance; and electronic mail between him and other Texas Army National Guard (TXARNG) officials.

CONSIDERATION OF EVIDENCE:

1.  The applicant had prior enlisted service in the TXARNG.

2.  A copy of the applicant’s Investigation and Adjudication History shows that on 19 September 2005 the applicant’s security clearance eligibility was undetermined pending a reply to a statement of reasons.

3.  The available records show that he graduated from OCS on 24 September 2005.
4.  On 22 March 2006, the applicant was denied eligibility for a security clearance.  However, his security clearance was granted on 4 April 2007.

5.  On 25 October 2007, a Federal Recognition Board was held by the TXARNG to determine if the applicant was qualified to be extended Federal recognition.  The proceedings indicated that the applicant was satisfactory in his physical qualifications, moral character, and general qualifications.

6.  The applicant’s oath of office as a second lieutenant is not available.  However, the available records indicate that he executed his oath of office as a second lieutenant in the TXARNG on 25 October 2007 and that he was extended temporary Federal recognition.

7.  National Guard Bureau (NGB) Federal Recognition Special Orders Number 40 AR, dated 11 February 2008, extended the applicant permanent Federal recognition for his initial appointment to the rank of second lieutenant effective 25 October 2007.

8.  On 23 July 2008, the applicant successfully completed the Military Intelligence Basic Officer Leadership Course.

9.  During the processing of this case, an advisory opinion was obtained from the Chief, Personnel Division, NGB, who recommended that the applicant’s initial appointment date be adjusted to 12 April 2007, the date that his security clearance was granted, and that he receive all back pay and allowances.  The Chief, Personnel Division, NGB, also recommended that the applicant be promoted to first lieutenant effective 12 April 2009.  He stated that according to National Guard Regulation 600-100 (Commissioned Officer-Federal Recognition and Related Personnel Actions), paragraph 2-6(I), applicants must have a final security clearance prior to appointment or reappointment as a commissioned officer in the Army National Guard.

10.  A copy of the advisory opinion was provided to the applicant on 1 April 2009 for his comment and/or rebuttal.  He concurred with the advisory opinion on 12 April 2009.

11.  NGB Federal Recognition Special Orders Number 72 AR, dated 31 March 2009, extended the applicant Federal recognition for the purpose of promotion to the rank of first lieutenant effective 25 April 2009.

12.  On 20 July 2009 a second advisory opinion was obtained from the Chief, Personnel Division, NGB, who recommends that the applicant’s initial appointment date be adjusted from 25 October 2007 to 12 April 2007, the date that his security clearance was granted, and that he receive all back pay and allowances.  The Chief, Personnel Division, NGB, also recommends that the applicant be promoted to first lieutenant effective 12 October 2008.  He states that according to National Guard Regulation 600-100 (Commissioned Officer-Federal Recognition and Related Personnel Actions), paragraph 2-6(I), applicants must have a final security clearance prior to appointment or reappointment as a commissioned officer in the Army National Guard.  He refers to an Office of the Assistant Secretary of the Army for Manpower and Reserve Affairs memorandum, dated 19 August 2008, and NGB Policy Memorandum Number 08-035, dated 25 November 2008, subject:  Reduction in Time in Grade for Promotion to First Lieutenant from 24 Months to 18 Months.  These memorandums established the Department of the Army policy authorizing Reserve Component second lieutenants to be promoted with a minimum of 18 months of time in grade and completion of the Basic Officer Leadership Course.  The effective date of promotion will not precede 19 August 2008.

13.  A copy of the advisory opinion was provided to the applicant for his comment and/or rebuttal.  To date, there has been no response from the applicant regarding the advisory opinion.

14.  National Guard Regulation 600-100 provides procedures for processing all applications for Federal recognition.  Paragraph 2-1 states commissioned officers of the Army National Guard 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.

15.  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.

16.  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 determined 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.

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

18.  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.

19.  Office of the Assistant Secretary of the Army for Manpower and Reserve Affairs memorandum, dated 19 August 2008, and NGB Policy Memorandum Number 08-035, dated 25 November 2008, subject:  Reduction in Time in Grade for Promotion to First Lieutenant from 24 Months to 18 Months, established the Department of the Army policy authorizing Reserve Component second lieutenants to be promoted with a minimum of 18 months of time in grade and completion of a basic officer leadership course.  The effective date of promotion will not precede 19 August 2008.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the date of his initial appointment to the rank of second lieutenant should be backdated 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.  Records show that, although he was not extended Federal recognition for his initial appointment to the rank of second lieutenant until 25 October 2007, he met the criteria for appointment to the rank of second lieutenant when his security clearance was granted on 12 April 2007.

3.  In accordance with the applicable regulation, applicants must have a final security clearance prior to appointment.  Therefore, it would be appropriate to correct his records to show that he was extended Federal recognition for his appointment to the rank of second lieutenant effective 12 April 2007.

4.  Consequently, the applicant was eligible for promotion to the rank of first lieutenant 18 months after his initial appointment providing he met the educational and time-in-grade criteria.

5.  His records show that he successfully completed the Military Intelligence Basic Officer Leadership Course on 23 July 2008 and that he was eligible to be extended Federal recognition for his appointment to the rank of second lieutenant effective 12 April 2007.  Therefore, his records should be corrected to show that he was extended Federal recognition for his promotion to the rank of first lieutenant effective 12 October 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:

____x____  ___x_____  ___x_____  GRANT FULL RELIEF 

________  ________  ________  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 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, as appropriate, by amending NGB Special Orders Number 40 AR, dated 11 February 2008, to show he was extended Federal recognition effective 12 April 2007 in the rank of second lieutenant and NGB Special Orders Number 72 AR, dated 31 March 2009, to show that he was extended Federal recognition effective 12 October 2008 in the rank of first lieutenant.

2.  That he be awarded any and all back pay and allowances that he may be due as a result of these corrections.



      ____________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)                                         AR20090002693



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ABCMR Record of Proceedings (cont)                                         AR20090002693



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