BOARD DATE:	  March 9, 2010

		DOCKET NUMBER:  AR20090012352 


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 date of rank (DOR) to first lieutenant (1LT) be adjusted to 25 September 2005.

2.  The applicant states, in effect, that her DOR to 1LT should be corrected to reflect the true date of eligibility for promotion, 25 September 2005, which was missed due to no fault of her own. 

3.  The applicant provides the following documents in support of her application:  self-authored statement; National Guard Bureau (NGB) Special Orders Number 258 AR, dated 8 October 2008; NGB Memorandum, dated 8 October 2008; Oklahoma Army and Air National Guard (OKARNG) Orders Number (#) 102-059, dated 29 April 2004; OKARNG Orders #118-070, dated 27 April 2004; OKARNG Orders #051-079, dated 20 February 2004; Orders #118-081, dated 27 April 2004; OKARNG Orders #051-080, dated 20 February 2004; OKARNG Orders #118-082, dated 27 April 2004; five DA Forms 67-9 (Officer Evaluation Report); NGB memorandum, dated 4 September 2007; two FB Forms 1059 (Basic Officer Leadership Course II Evaluation Report); OKARNG Joint Force Headquarters (JFH) Orders #259-006, dated 15 September 2008; and OKARNG JFH Memorandum, dated 10 April 2009.


CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2. The applicant's record shows that on 25 September 2003 she was appointed and granted Federal Recognition as a 2LT in the Quartermaster (QM) Corps of the OKARNG.

3.  On 29 May 2004, the applicant was accused of illegal drug use and as a result was placed under a suspension of favorable personnel actions (FLAG) and denied the right to attend OBC.

4.  On 4 September 2007, the Chief, NGB, a lieutenant general, determined the OKARNG failed to substantially comply with the procedures of Army Regulation 600-85, and as a result declined to withdraw the Federal Recognition of the applicant.  

5.  On 22 May 2008, the applicant completed the Basic Officer Leadership Course II, and on 27 August 2008 she completed the QM Basic Officer Leader Course, PH3.

6.  The applicant's Official Military Personnel File (OMPF) contains a DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG)), dated 16 April 2008, which closed the applicant's case favorably and removed the FLAG action, effective 4 September 2007.

7.  JFH OKARNG Orders 259-006, dated 15 September 2008, promoted the applicant to 1LT, effective and with a date of rank of 25 September 2005, and NGB Special Orders Number 258 AR, dated 8 October 2008, granted the applicant Federal Recognition in the rank of 1LT effective the same date. 


8.  In connection with the processing of this case, an advisory opinion was obtained from the Chief, Personnel Division, NGB.  This official states the applicant was scheduled to attend the OBC course in May of 2004, but was accused of illegal drug use and was denied the opportunity as a result of being flagged.  On 4 September 2007, the applicant stated she had been cleared of all charges based on a memorandum from the LTG which stated that he had declined to withdraw the applicant's Federal Recognition based on the OKARNG "blatant disregard for regulatory procedures."  He further stated that a Department of Army, Office of the Deputy Chief of Staff G-1 Memorandum, dated 14 January 2005, requires that all Reserve Component (RC) officers in the rank of 2LT be promoted to 1LT by the Human Resources Command (HRC) or NGB as appropriate when they have met the 24 months time in grade requirement for promotion and completed OBC.  As a result this official recommended that the applicant's request that her DOR to 1LT be adjusted to 25 September 2005 be denied.

9.  On 15 December 2009, a copy of this advisory opinion was forwarded to the applicant in order for her to have the opportunity to rebut its contents.  To date, no response has been received from the applicant.

10.  The applicant provides a statement from the Chief, Officer Branch, Joint Force Headquarters, who recommends the applicant's request that her DOR be adjusted to 25 September 2005 be granted based on her having been denied the opportunity to attend BOLC II and III in a timely manner through no fault of her own.

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 policy and procedures used for selecting and promoting commissioned officers (other than commissioned warrant officers) of the Army National Guard of the United States and of commissioned and warrant officers (WO) of the U.S. Army Reserve.  Table 2-1 establishes the time in grade requirement for officer promotions and it states, in pertinent part, that the minimum time in grade for promotion to 1LT is 2 years in the lower grade and completion of OBC.

12.  Paragraph 4-11 of the same regulation provides guidance on officer's date of promotion.  It states in pertinent part that an officer's promotion is automatically delayed when the officer is under suspension of favorable personnel actions.  An 

officer's promotion will not be delayed under this paragraph unless the officer is given written notice of the grounds for delay before the intended date of promotion or as soon as possible thereafter.  If promotion is delayed, the officer must be given an opportunity to make a written statement to the Secretary of the Army for their consideration.  

13.  Paragraph 4-11 further stipulates that automatic delays under this provision will be resolved within 6 months of the date the officer would have been promoted.  An officer's promotion will not be delayed more than 6 months unless the SA, or the Secretary's designee, grants a further delay.  However, if the determination is made more than 6 months after the effective date of the promotion, the officer will be deemed to have been in a promotable status on the effective date of the promotion and treated as though the involuntary delay had not been imposed. This is unless the officer possessed a nonwaivable statutory disqualification for promotion consideration or selection.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that her DOR to 1LT should be adjusted to 
25 September 2005 was carefully considered and found to have merit.

2.  By regulation automatic delay of an officer's promotion as a result of suspension of favorable personnel actions must be resolved within six months of the date the officer would have been promoted.  However, if the determination is made more than 6 months after the effective date of the promotion, the officer will be deemed to have been in a promotable status on the effective date of the promotion and treated as though the involuntary delay had not been imposed.  

3.  The evidence of record confirms that in April 2004 based on a urinalysis test the applicant was accused of using illegal drugs and as a result she was flagged and denied the right to attend OBC.  The evidence of record also confirms that the applicant's flag was not removed and favorably closed until 4 September 2007, which was more than six months after the date the applicant should have been promoted.  In view of the facts of this case, it would be appropriate and serve the interest of justice to correct the applicant's record to show she was promoted to 1LT and granted Federal Recognition in that grade effective and with a date of rank of 25 September 2005, as an exception to policy, and by providing her any back pay and allowances due as a result of this change.  


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 State Army National Guard and Department of the Army records of the individual concerned be corrected by showing that she was promoted to first lieutenant on 25 September 2005; and by providing her all back pay and allowances due as a result.




      _______ _   __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)                                         AR20090012352



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ABCMR Record of Proceedings (cont)                                         AR20090012352



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