IN THE CASE OF:	

		BOARD DATE:	5 January 2010  

		DOCKET NUMBER:  AR20090008578 


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 effective date of his promotion to the rank of first lieutenant be adjusted to 12 August 2008.

2.  The applicant states that his date of rank from second lieutenant to first lieutenant is incorrect.  He states that he was commissioned as a second lieutenant on 12 August 2006 and that he was eligible for promotion to first lieutenant on 12 August 2008.  He states that he was given the date of 13 November 2008 as his effective date of rank to first lieutenant, which was the date that he completed the officer basic course (OBC), and that due to the length of his U.S. Army flight training, he was unable to complete the requirements of OBC by his promotion eligibility date (PED).  He states that backdating his promotion to first lieutenant will enable him to be promoted with his peers, instead of faulting him for choosing a long OBC as an aviation officer.  He states that he has had no luck resolving this matter with Maryland Army National Guard (MDARNG) personnel.  He states that he entered flight training on 25 June 2007 and completed the training on 13 November 2008.  He concludes by stating that a policy memorandum states that aviation second lieutenants who have not graduated from an OBC/basic officer leadership course (BOLC) will be promoted upon 24 months of commissioned service if currently enrolled in Flight School XXI/OBC/BOLC and not flagged.  He states that the memorandum was overlooked for his promotion to first lieutenant and as a result he was not promoted until he completed OBC.

3.  The applicant provides a memorandum from the Department of the Army Director of Military Personnel Management, dated 22 December 2006; a memorandum from the Army Reserve G-1, dated 9 April 2008; National Guard Bureau (NGB) Special Orders Number 268 AR dated 18 October 2006; NGB Special Orders Number 9 AR dated12 January 2009; a memorandum from the National Guard Bureau Personnel Division Acting Chief, dated 12 January 2009, notifying him of his promotion to the rank of first lieutenant; MDARNG Orders 223-157, dated 11 August 2006, promoting him to the rank of second lieutenant; an application for federal recognition, dated 18 July 2006; Proceedings of a Federal Recognition Examining Board completed on 27 July 2006; a copy of his oaths of office; NGB Special Orders Number 284 AR, dated 7 November 2008; a control data transmittal sheet; a second lieutenant to first lieutenant promotion checklist; an MDARNG memorandum recommending him for promotion to first lieutenant; his individual medical readiness record; his personnel qualification record; a service school academic evaluation report, dated 13 November 2008; and a personal summary.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he was initially appointed in the MDARNG Air Defense Artillery Branch as a second lieutenant effective 12 August 2006 with prior enlisted service.  Based on the required 2 years of minimum time in the lower grade, his PED for first lieutenant was 12 August 2008.

2.  NGB Special Orders Number 268 AR were published on 18 October 2006 extending the applicant Federal recognition for his initial appointment to the rank of second lieutenant with an effective date of 12 August 2006.

3.  In a memorandum dated 22 December 2006, the Department of the Army Director of Military Personnel Management published an amendment to policy regarding promotion of second lieutenants to first lieutenant and warrant officers one to chief warrant officers two.  In this memorandum the Director of Military Personnel Management states that unless a Reserve Component second lieutenant is enrolled in aviation training soon after commissioning he or she often will not meet the OBC/BOLC requirement for promotion to first lieutenant by the 24-month mark.  Effective immediately, Reserve Component second lieutenants who have not graduated from OBC/BOLC to be promoted at 24 months of commissioned service will be promoted if currently enrolled in Flight School XXI/OBC/BOLC and not flagged.  Officers who are past the 24-month mark and are currently enrolled will be promoted on the effective date of the policy memorandum, unless flagged.  Completion of OBC/BOLC remains a requirement for promotion selection to captain.

4.  The applicant entered the Aviation Officer Basic Course on 25 June 2007 and on 7 November 2008, NGB Special Orders Number 284 AR were published extending him Federal Recognition in the rank of second lieutenant, Aviation (AV) Branch, effective 1 November 2008.  He completed the Aviation OBC on 13 November 2008.

5.  On 12 January 2009, the applicant was notified that he was being promoted as a Reserve Commissioned Officer of the Army to the rank of first lieutenant effective 13 November 2008.

6.  NGB Special Orders Number 9 AR were published on 12 January 2009 extending the applicant Federal recognition for his promotion to the rank of first lieutenant with an effective date of 13 November 2008.

7.  In a memorandum, subject:  Amendment to Policy – Promotion of Second Lieutenants to First Lieutenant and Warrant Officer One to Chief Warrant Officer Two, dated 9 April 2008, the Army Reserve G-1, stated, in effect, that all Army Reserve officers in the rank of second lieutenant would be promoted to first lieutenant when they met the 24-month time in grade requirement for promotion, completed OBC, and were otherwise eligible for promotion.  However, an exception to policy per memorandum, Headquarters, Department of the Army, G-1, dated 14 January 2005, authorizes Army Reserve Aviation second lieutenants who have not graduated from an OBC/BOLC to be promoted to first lieutenant at 24 months of commissioned service if they are enrolled in Flight School XXI/BOLC and not flagged.

8.  NGB Special Orders Number 194 AR were published on 7 August 2009 amending NGB Special Orders Number 284 AR to show the date that he was extended Federal recognition as 1 August 2008 instead of 1 November 2008 and amending NGB Special Orders Number 9 AR, dated 12 January 2009, to show his branch as "AV" instead of "AD."

9.  In an advisory opinion, dated 10 August 2009, the Chief, Personnel Division, NGB, reiterated and recommended approval of the applicant's request.  He further recommended that the applicant receive all back pay and allowances due to the adjustment.  He stated that the applicant was enrolled in flight school when he reached 24 months time in grade and thereby met all requirements to be promoted on 12 August 2008.  He stated that in accordance with National Guard Regulation 600-100, chapter 8, paragraph 8, a second lieutenant must complete a minimum of 2 years of time in grade prior to consideration or promotion to first lieutenant and that there is no evidence that the applicant was flagged from promotion on 12 August 2008 when he met the time in grade requirements to be promoted.  He stated that NGB policy memorandum number 07-005 states in pertinent part, "effective immediately, Reserve Component Aviation second lieutenants who have not graduated from an OBC/BOLC will be promoted at 24 months of commissioned service if currently enrolled in Flight School XXI/OBC/BOLC and not flagged."

10.  On 17 August 2009, a copy of the advisory opinion was forwarded to the applicant his information and/or possible rebuttal.  To date, there has been no response from the applicant regarding the advisory opinion.

11.  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 the promotion of Reserve and Army National Guard officers.  This regulation specifies that an officer in the grade of second lieutenant will be considered for promotion without review by a promotion selection board.  Promotion to first lieutenant requires completion of 24 months of time in grade and completion of a branch OBC.  The officer's records will be screened to determine eligibility for promotion to first lieutenant far enough in advance to permit promotion on the date promotion service is completed.  The promotion authorities will ensure all requirements are met before announcing a promotion.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the effective date of his promotion to the rank to first lieutenant should be adjusted to 12 August 2008.

2.  His contentions have been noted and the documents that he submitted have been considered and have been determined to contain merit.  He is entitled to correction of his promotion effective date for first lieutenant to 12 August 2008.

3.  The evidence of record shows the applicant completed the required 2 years of time in grade, his attendance at a resident Aviation OBC, and met all requirements for promotion purposes prior to his current promotion effective date.  The applicant's records did not reveal any unfavorable information to cause a delay in his promotion to first lieutenant on 12 August 2008.  The applicant's promotion was delayed through no fault of his own and this delay created an injustice that should now be corrected.  The applicant’s actions did not contribute to the delay and he should not be penalized by a late promotion.

4.  Additionally, he is entitled to back pay and allowances based on this adjustment.

5.  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:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all the State Army National Guard and Department of the Army records of the individual concerned be corrected by showing the applicant was promoted to first lieutenant, Aviation Branch, with a promotion effective date and date of rank of 12 August 2008 with entitlement to back pay and allowances based on this adjustment.



      ___________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)                                         AR20090008578



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ABCMR Record of Proceedings (cont)                                         AR20090008578



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