IN THE CASE OF:	  

		BOARD DATE:	  23 March 2010

		DOCKET NUMBER:  AR20090013513 


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 reconsideration of an earlier request to correct his date of rank to captain.

2.  The applicant states that his date of rank to first lieutenant (1LT) should be corrected to 7 August 1998, and subsequent to this correction, his date of rank to captain should be corrected to 6 August 2003.

3.  The applicant provides the following documents:

	a.  an U.S. Army appointment certificate to second lieutenant (2LT), dated 8 August 1996;

	b.  a National Guard Bureau (NGB) Form 337 (Oaths of Office), dated
8 August 1996;

	c.  a DA Form 1059 (Service School Academic Evaluation Report), dated 5 February 1997 showing he completed his Officer Basic Course (OBC);

	d.  a DA Form 67-9 (Officer Evaluation Report [OER]), authenticated by the rater on 26 June 1998;

	e.  Orders 212-507, dated 31 July 1998, issued by the State of California, Office of the Adjutant General;

	
	f.  an OER, authenticated by the applicant on 8 August 1999;

	g.  a copy of a captain promotion memorandum from the U.S. Total Army Personnel Command (USATAPC), St. Louis, MO, dated 25 July 2003; and

	h.  an excerpt from Title 10, U.S. Code, section 14316.  Army National Guard and Air National Guard:  appointment to and Federal recognition in a higher Reserve grade after selection for promotion.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080014541 on 21 January 2009.

2.  The applicant has presented a new argument stating that his date of rank to 1LT should be corrected which would necessitate a correction to his date of rank to captain.  The evidence presented in paragraph 3 of the preceding section supports the applicant's new argument that warrants consideration by the Board.

3.  With prior enlisted active duty service and Army National Guard (ARNG) service, the applicant executed an NGB Form 337 on 8 August 1986, as a 2LT in the California Army National Guard (CAARNG).  Concurrently, he was granted temporary Federal recognition.

4.  The applicant was extended initial Federal recognition in the ARNG on 15 January 1997 with an effective date of 8 August 1996 by the Departments of the Army and Air Force, NGB, through issuance of Special Orders Number
11 AR.

5.  By memorandum on 19 August 1997, USATAPC, St. Louis, appointed the applicant as a Reserve commissioned officer of the Army under the provisions of Title 10, U.S. Code, sections 12201 and 12203.  The effective date of appointment was 8 August 1996, his initial appointment in the ARNG.

6.  On 16 October 1997, the applicant in the grade of 2LT executed a DA Form 71 (Oath of Office - Military Personnel) as a Reserve commissioned officer of the Army.



7.  On 1 June 1998, the applicant was transferred between troop program units of the State of California, ARNG with the publication of Orders 109-028.

8.  The State of California, Office of the Adjutant General issued Orders 212-507, dated 31 July 1998, promoting the applicant to 1LT effective 7 August 1998.  The authority sited was section 220, California MVC [Military and Veterans Code] and National Guard Regulation 600-100 (Commissioned Officers - Federal Recognition and Related Personnel Actions).  The additional instructions provided on this order state that the effective date of promotion in the ARNG will be the date permanent Federal recognition orders to 1LT are published.   The authority line for this order is "By Order of the Governor."

9.  By memorandum on 2 September 1998, the NGB promoted the applicant to the rank of 1LT as a Reserve commissioned officer of the Army.  This memorandum provides guidance that states the time in grade for promotion to the next grade (captain) will be computed based on the effective date of his 1LT promotion on 2 September 1998.

10.  The applicant received Federal recognition as a 1LT in the ARNG on 2 September 1998, which established his date of rank to 1LT also as
2 September 1998.  The Departments of the Army and Air Force, NGB, issued Special Orders Number 155 AR promoting him to 1LT.

11.  On 30 July 2000, the applicant was honorably separated from the ARNG and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) by issuance of Orders 300-192, State of California, Office of the Adjutant General.  The orders state that the applicant terminated his Federal recognition as a member of the ARNG and became a member of the USAR under the provisions of Title 10, U.S. Code, section 3352(b).

12.  By memorandum on 25 July 2003, USATAPC, St. Louis, promoted the applicant to captain in the USAR with an established date of rank of 1 September 2003.

13.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers other than General Officers) provides policy for selecting and promoting commissioned officers of both the ARNG of the United States and the USAR.  It states an officer in the grade of 2LT will be considered for promotion without review by a selection board.  The officer’s record will be screened to determine eligibility for promotion to the next higher grade far enough in advance to permit promotion to the date promotion service is completed.  The records of ARNG unit officers will be screened and promotions accomplished by the Chief, NGB.
14.  National Guard Regulation 600-100 prescribes policies and procedures governing, in part, the appointment, Federal Recognition, and separation of commissioned officers of the ARNG.  Chapter 8 of the version dated 15 April 1994 stated that the promotion of officers in the ARNG is a function of the State.  A commissioned officer promoted by State authorities has a State status in the higher grade under which to function.  However, to be extended Federal recognition in the higher grade, the officer must have satisfied the requirements prescribed in this chapter.

15.  National Guard Regulation 600-100, paragraph 8-6 of the version dated
15 April 1994, stated that wearing of insignia of the higher grade is not authorized until Federal recognition has been extended by the Chief, NGB.  Paragraph 8-18 stated that a 2LT who is promoted to the grade of 1LT will be extended Federal recognition in the higher grade on the date he or she completes 3 years of promotion service.

16.  By memorandum, dated 11 September 1996, the NGB forwarded the ROPMA [Reserve Officer Personnel Management Act] Implementation Guidelines Handbook to all the States and Territories.  Paragraph 2-3 stated that 2LTs would be considered for promotion to 1LT prior to reaching 24 months of commissioned service so that they can be promoted upon reaching 24 months of commissioned service.  However, they must also be qualified in all other respects in accordance with National Guard Regulation 600-100.

17.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers other than General Officers), effective 1 February 1998, paragraph 4-17 stated a qualified 1LT would not be promoted before the date of completion of 3 years of promotion service with two specified exceptions (neither of which applied to the applicant).

18.  Army Regulation 135-155, effective 2 November 2001, Table 2-1 states the maximum TIG for promotion to CPT is 5 years.

DISCUSSION AND CONCLUSIONS:

1.  Barring any impediment to promotion, the applicant should have been promoted to 1LT both by the CAARNG and federally recognized by the NGB, effective 7 August 1998, the earliest date possible after he completed two years time in grade as a 2LT.  The CAARNG did publish state orders promoting the applicant to 1LT, effective 7 August 1998.  For unknown reasons, the NGB delayed the applicant's Federal recognition to 1LT by 27 days which also resulted in his USAR promotion also being delayed.  Therefore, it would appropriate to 
correct the applicant's Federal recognition to 1LT to show he was promoted to 1LT, effective 7 August 1998.   Based upon correcting the applicant's Federal recognition to 1LT, it would be appropriate to correct the applicant's USAR date of rank to 1LT to 7 August 1998.

2.  Had the NGB and the USAR promoted the applicant to 1LT, effective
7 August 1998, he would have been eligible for promotion to CPT upon reaching five years time in grade as a 1LT.  As a member of the USAR, he was selected by the Fiscal Year 2002 CPT Reserve Promotion Board for promotion to captain with a date of rank of 1 September 2003.  Therefore, it would be equitable to correct his record to show that his date of rank to captain is five years from his corrected date of rank to 1LT.  Therefore, the adjusted date of rank to captain in the USAR would be 6 August 2003. 

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 partial amendment of the ABCMR’s decision in Docket Number AR20080014541, dated 21 January 2009.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  correcting NGB Special Orders Number 155 AR, dated 2 September 1998, to show the applicant's effective date of promotion to 1LT as 7 August 1998;

	b.  correcting the NGB's 1LT promotion memorandum to show the applicant's 1LT effective date of rank as 7 August 1998;

	c.  correcting the applicant's USAR captain's date of rank to 6 August 2003 by publishing a corrected captain promotion memorandum;

	d.  adjusting the applicant's finance records to show his 1LT date of rank as 7 August 1998 and paying him any back pay due; and
	e.  adjusting the applicant's finance records to show his captain's date of rank as 6 August 2003 and paying him any back pay due.

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 adjusting the applicant's date of rank to captain to 2000 or 2001 as initially requested.



      ___________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)                                         AR20090013513



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ABCMR Record of Proceedings (cont)                                         AR20090013513



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