IN THE CASE OF:	  

		BOARD DATE:	  10 November 2009

		DOCKET NUMBER:  AR20090014093 


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, adjustment to his promotion effective date for first lieutenant to 14 August 2006.

2.  The applicant states, in effect, he was commissioned as a second lieutenant on 14 August 2004 and based on the maximum time in grade Army G-1 policy of 24 months he should have been promoted to first lieutenant as a field artillery (FA) officer on 14 August 2006.  He also states he had no negative or derogatory information in his file any time prior to 14 August 2006 that would have kept him from being promoted at 24 months.  The Wyoming Army National Guard (WYARNG) has never been aware or has refused to follow the Army G-1 policy for mandatory promotion at 24 months.  Therefore, they would promote on their own schedule which was usually well after the 24-month mandated period.

3.  In support of his application, the applicant provides copies of his 2004 initial appointment orders and memorandum, his 2006 initial appointment orders, and the 2005 Army G-1 policy memorandum.

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 military records show he was initially appointed in the WYARNG, FA Branch, as a second lieutenant, effective 14 August 2004, with prior enlisted service.  Based on the required 2 years minimum time in the lower grade, his promotion eligibility date (PED) for first lieutenant was 14 August 2006. 

3.  The applicant completed the FA Officer Basic Course (OCB) on 25 January 2006.  

4.  The applicant was awarded a Juris Doctor degree on 14 May 2005. 

5.  The applicant's records show that he met the requirements, i.e., military education, active status, medical qualification, and security clearance for promotion purposes on 14 August 2006.

6.  The applicant was reappointed in the WYARNG, Judge Advocate General’s Corps (JAGC), as a first lieutenant, effective 18 October 2006, with a date of rank for first lieutenant of 18 September 2004, based on award of commissioned service credit for his prior service.

7.  The applicant completed the JAGC Officer Basic Course on 26 September 2007. 

8.  In a memorandum, Subject:  Amendment to Policy – Promotion of Second Lieutenants to First Lieutenant and Warrant Officer One to Chief Warrant Officer Two, dated 14 January 2005, the Director of Military Personnel Management, Army G-1, stated, in effect, that all ARNG officers in the rank of second lieutenant would be promoted to first lieutenant when they met the 24 months time in grade requirement for promotion and completed the OBC and were otherwise eligible for promotion.

9.  In an advisory opinion, dated 16 November 2006, the Chief, Personnel Division, Departments of the Army and the Air Force, National Guard Bureau 

(NGB), reiterated the applicant's request.  The NGB official stated that Special Orders Number 26 AR, dated 2 February 2007, shows that the applicant was initially appointed as a first lieutenant with a date of rank of 18 September 2004.  The NGB official stated that he was returning the request without action.

10.  The advisory opinion was forwarded to the applicant for acknowledgement and/or rebuttal on 16 September 2009.  In his rebuttal, dated 18 September 2009, the applicant stated that he was commissioned as a second lieutenant on 14 August 2004 into the WYARNG as an FA officer.  He was promoted to first lieutenant on 18 October 2006 because he received a new JAGC commission on 18 October 2006.  However, his date of rank as first lieutenant of 18 September 2004 is merely a constructive date of rank one receives automatically as a JAGC officer.  He also states, in effect, that date of rank is artificial for pay purposes and certainly is not based on his original commission as an FA second lieutenant. His argument is that he should also have a promotion order dated 14 August 2006 that promotes him to first lieutenant as an FA officer.  His commissioning into the JAGC on 18 October 2006 is the only reason he was promoted to first lieutenant that quickly.  He should also already have been an FA first lieutenant before the JAGC commissioning date.

11.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes the policies and procedures for the promotion of Reserve and ARNG 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 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.  

12.  Army Regulation 135-100, paragraph 3-12, specifies that persons receiving original appointments with assignment to the JAGC will be appointed in the grade of first lieutenant with 3 years or more constructive service credit.  An individual awarded a first professional law degree was entitled to award of 3 years constructive service credit.  The date of rank of an officer commissioned in the Reserve and assigned to the JAGC is the date of appointment.  The date of rank will be further backdated by the period of commissioned service credit.  This is in excess of that amount used to establish the officer’s appointment grade.  An individual will be awarded 1 year for each year of commissioned service in an active status, but not on active duty.


DISCUSSION AND CONCLUSIONS:

1.  The applicant is entitled to correction of his promotion effective date for first lieutenant to 14 August 2006, with entitlement to back pay and allowances based on this adjustment.

2.  The evidence of record shows the applicant completed the required 2 years time in grade, his resident 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 14 August 2006.  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. 

3.  The evidence further shows the applicant was properly appointed into the JAGC in the rank of first lieutenant with a backdated date of rank based on his award of commissioned service credit.  As a result, he is not entitled to further adjustment of his date of rank of first lieutenant based on the delay in his promotion to first lieutenant as a FA officer.

4.  In view of the foregoing, the applicant’s records should be corrected 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, FA Branch, with a promotion effective date and date of rank of 14 August 2006, 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)                                         AR20090014093



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ABCMR Record of Proceedings (cont)                                         AR20090014093



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