IN THE CASE OF:	  

		BOARD DATE:	  25 February 2010

		DOCKET NUMBER:  AR20090017821 


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 correction of his date of rank (DOR) for second lieutenant (2LT)/pay grade O-1 to 18 May 2007.

2.  The applicant states, in effect, he was appointed as a commissioned officer on 18 May 2007 and immediately ordered to active duty for operational support (ADOS) as a Reserve officer.  As a result, he did not have the opportunity to execute an oath of office with the Virginia Army National Guard (VAARNG) at his unit.  He adds that he finally signed his National Guard Bureau (NGB) Form 60 (Oath of Office) for the VAARNG on 28 August 2007.  He was processed as an initial appointment rather than a transfer from the U.S. Army Reserve and this affected his pay and DOR.

3.  The applicant provides copies of his appointment letter, oath of office, ADOS orders, and Leave and Earnings Statement (LES).

CONSIDERATION OF EVIDENCE:

1.  An NGB Form 22 (Report of Separation and Record of Service) shows the applicant enlisted in the Army National Guard (ARNG) of the United States and VAARNG on 14 September 2006 and he was honorably discharged on 17 May 2007 based on his appointment as a commissioned officer.  At the time he had completed 8 months and 4 days of net service this period.


2.  Headquarters, U.S. Army Reserve Officers’ Training Corps Instructor Group, University of Virginia, Charlottesville, VA, memorandum, dated 18 May 2007, shows the applicant was appointed as a Reserve commissioned officer of the U.S. Army effective upon execution of a DA Form 71 (Oath of Office - Military Personnel).  A DA Form 71 shows the applicant executed an oath of office for appointment as a Reserve commissioned officer on 18 May 2007.

3.  Headquarters, U.S. Army Human Resources Command, Alexandria, VA, Orders A-06-713673, dated 11 June 2007, show the applicant was ordered to ADOS in the grade of 2LT on 12 June 2007 for a period of 3 months and
19 days.  The orders also show the applicant's DOR as 18 May 2007.

4.  A DA Form 1059 (Service School Academic Evaluation Report) shows the applicant successfully completed the Military Intelligence Basic Officer Leader Course on 16 April 2008.

5.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he entered active duty for training (ADT) on 28 October 2007 and was honorably released from ADT on 16 April 2008 based on completion of required active service.  At the time he had completed 5 months and 19 days of net active service this period.

   a.  Block 4a (Grade, Rate or Rank) shows the entry "2LT" and block 4b (Pay Grade) shows the entry "O01."

   b.  Block 12h (Effective Date of Pay Grade) shows the entry "2007 05 18" (i.e., 18 May 2007).

6.  Headquarters, NGB, Washington, DC, Special Orders Number 233 AR, dated 11 September 2008, announced the extension of Federal recognition in the ARNG of the applicant's initial appointment as a 2LT effective 28 August 2007.

7.  Headquarters, VAARNG, Blackstone, VA, Orders 121-016, dated 1 May 2009, as amended by Orders 132-006, dated 12 May 2009, show the applicant was promoted in the VAARNG to first lieutenant (1LT)/pay grade O-2 effective
28 February 2009.  The additional instructions state that the applicant will not receive pay or wear insignia in the higher grade until Federal recognition has been extended by the Chief, NGB.

8.  Headquarters, NGB, Arlington, VA, memorandum, dated 13 May 2009, subject:  Promotion as a Reserve Commissioned Officer of the Army, shows the applicant was promoted to 1LT (O-2) effective 28 February 2009.
9.  Headquarters, NGB, Washington, DC, Special Orders Number 120 AR, dated 13 May 2009, announced the extension of Federal recognition in the ARNG of the applicant's promotion to 1LT (O-2) effective 28 February 2009.

10.  In support of his application, the applicant provides, in pertinent part, a copy of his LES, dated 19 October 2007, that shows he had a basic pay debt balance of zero (0) and an unpaid debt balance total of $1,456.31.

11.  In the processing of this case, an advisory opinion was obtained from the Chief, Personnel Division, NGB, Arlington, VA.

   a.  The advisory official recommends approval of the applicant's request for correction of the initial date of his appointment from 28 August 2007 to 18 May 2007 and reimbursement of any funds erroneously collected from the applicant.

	b.  He notes the applicant met the education requirements for promotion to 1LT when he completed the Officer Basic Course.

	c.  He states upon approval of correction of the applicant's initial appointment date, his promotion effective date and DOR to 1LT (O-2) should be adjusted to 18 November 2008.  He also states that the applicant should be reimbursed all pay and allowances as a result of this adjustment.

   d.  The advisory official adds that the recommendation is supported by the Deputy G-1, Joint Forces Headquarters, VAARNG.

12.  On 7 January 2010, the applicant was provided a copy of the advisory opinion in order to have the opportunity to respond to its contents; however, as of this writing the applicant has failed to provide any response.

13.  National Guard Regulation 600-100 (Commissioned Officers - Federal Recognition and Related Personnel Actions), chapter 2 (Appointments), provides that the appointment of officers in the ARNG is a function of the State concerned, as distinguished from the Federal recognition of such appointment.

   a.  Paragraph 2-2 shows the effective date of Federal recognition for original appointment is that date on which the commissioned officer executes the oath of office in the State.

   b.  Paragraph 2-3, subparagraph a, provides that temporary Federal recognition upon initial and permanent Federal recognition, in the case of promotion, establishes the authorized grade to be used by all officers in their federally recognized status.
	c.  Paragraph 2-13 provides that temporary Federal recognition may be extended to an officer who has been appointed in the ARNG of a State and found to be qualified by a Federal Recognition Board pending final determination of eligibility and appointment as a Reserve commissioned officer of the Army.  If not sooner withdrawn or replaced by the granting of permanent Federal recognition, temporary Federal recognition will automatically terminate six months after the effective date of State appointment.  However, should the initial period of temporary Federal recognition expire due to administrative processing delays, through no fault of the applicant, a subsequent Federal Recognition Board should be convened to consider the request again and grant another new period of temporary Federal recognition, if warranted.

   d.  This regulation also shows the time in grade (TIG) for promotion to 1LT (O-2) is 2 years and the military education requirement for promotion to 1LT is completion of the Officer Basic Course.
   
14.  Army Regulation 600-8-29 (Officer Promotions), Chapter 1 (Introduction), paragraph 1-10 (Promotion eligibility), provides that as established by the Secretary of the Army under Title 10, U.S. Code, sections 573, 574, and 619, officers must meet the minimum TIG requirements to be considered for promotion.  It also shows, in pertinent part, for promotion from 2LT to 1LT the law establishes no minimum TIG requirement for consideration for promotion; however, an officer must have at least 18 months TIG to be promoted to 1LT.

15.  Headquarters, NGB, Policy Memorandum 08-035, dated 25 November 2008, subject:  Reduction in TIG Requirement for Promotion for Reserve Component Officers to 1LT, provides that second lieutenants may be promoted at 18 months TIG provided they have completed the Basic Officer Leadership Course and are otherwise qualified.  However, the effective date of promotion will not precede
19 August 2008.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his records should be corrected to show he was appointed a 2LT (O-1) in the ARNG and VAARNG effective and with a DOR of 18 May 2007.  

2.  Records show the applicant executed an oath of office for appointment as a Reserve commissioned officer in the rank of 2LT (O-1) on 18 May 2007.

   a.  He was then ordered to active duty and served honorably on ADOS and ADT subsequent to 18 May 2007.

   b.  Based on the available evidence, it appears the applicant did not execute an oath of office in the State of Virginia until 28 August 2007.  As a result, his initial appointment in the ARNG and VAARNG was established effective
28 August 2007.  This, in turn, resulted in an erroneous adjustment of his 2LT DOR to 28 August 2007, causing a debt to the applicant.

   c.  Therefore, in view of the foregoing and based on the evidence of record, it would be appropriate to correct the applicant's ARNG and VAARNG records to show he was initially appointed in the rank of 2LT (O-1) effective and with a DOR of 18 May 2007.

3.  Records show the applicant satisfied the required education requirement
(i.e., completion of the Basic Officer Leader Course) for promotion to 1LT on
16 April 2008.  Thus, based on the applicant's adjusted 2LT DOR (as outlined in paragraph 2c, above), the applicant fulfilled the minimum TIG requirement for promotion to 1LT on 18 November 2008.  There is no evidence that the applicant was ineligible for promotion on 18 November 2008.  Therefore, it would be appropriate to correct the applicant's records to show he was promoted to 1LT (O-2) in the ARNG and VAARNG effective and with a DOR of 18 November 2008.

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 all State Army National Guard and Department of the Army records of the individual concerned be corrected by:

	a.  showing he was initially appointed in the rank of 2LT (O-1) effective and with a DOR of 18 May 2007;

	b.  granting Federal recognition of his initial appointment in the rank of 
2LT (O-1) effective and with a DOR of 18 May 2007;
	c.  showing he was promoted to the rank of 1LT (O-2) effective and with a DOR of 18 November 2008; and

	d.  granting Federal recognition of his promotion to the rank of 1LT (O-2) effective and with a DOR of 18 November 2008.

2.  As a result of the above corrections, the Defense Finance and Accounting Service shall be notified of the Board's determination and remit payment of all back pay (i.e., pay and allowances, less any withholdings and/or deductions) that may be due as a result of the 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)                                         AR20090017821



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ABCMR Record of Proceedings (cont)                                         AR20090017821



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