IN THE CASE OF:	  

		BOARD DATE:	  16 February 2011

		DOCKET NUMBER:  AR20100015690 


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 an adjustment of the date of her initial appointment in the Texas Army National Guard (TXARNG) from 25 February 2005 to 13 September 2003.

2.  The applicant states, in effect, the following:

* Her request should be granted based on abuse of authority
* In February 2003, she applied for officer candidate school (OCS), was boarded, and was selected for accelerated State OCS
* She was placed as number 1 on the order of merit list (OML) for OCS attendance
* She was improperly removed from the OML by colonel (COL) S****, her superior officer at the time

3.  The applicant provides the following:

* Self-authored statement
* Six statements of support
* Two DA Forms 638 (Recommendation for Award)
* DA Form 1059 (Service School Academic Evaluation Report)
* DA Form 67-9 (Officer Evaluation Report (OER))
* Award certificate and citation
* Email to and from COL S****
* OCS attendance timeline of fellow unit Soldiers
* Twenty four orders
* Three DD Forms 214 (Certificate of Release or Discharge from Active Duty)
* DD Form 215 (Correction to DD Form 214)
* OCS diploma
* Four memoranda

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show she initially enlisted in the TXARNG on 8 June 1988 and held military occupational specialty 75D (Personnel Records Specialist) She entered active duty in an Active Guard Reserve status on 8 June 1991.  She served in several positions and attained the rank of sergeant first class (SFC) on 25 July 1997.

2.  Her records also show she attended and successfully completed ARNG OCS on 11 September 2004.

3.  On 24 February 2005, she was honorably discharged for the purpose of accepting a commission in the ARNG.  Her DD Form 214 shows she had completed 13 years, 8 months, and 17 days of creditable active service for this period of service.

4.  On 25 February 2005, a Federal Recognition Board was held by the TXARNG to determine if the applicant was qualified to be awarded Federal recognition.  The proceedings indicated she was satisfactory in her physical qualifications, moral character and general qualifications.  

5.  On 25 February 2005, the TXARNG published Orders 056-1255 appointing her as a second lieutenant (2LT) in the TXARNG.  She executed an oath of office on the same date.  She was assigned to the Texas Military Forces, Joint Force Headquarters, Austin, TX.

6.  On 7 March 2005, the National Guard Bureau (NGB) issued Special Orders Number 73 AR extending her Federal recognition for initial appointment in the TXARNG in the rank of 2LT with an effective date of 25 February 2005.  

7.  On 23 February 2006, she successfully completed the Adjutant General Officer Basic Course (31 October 2005 through 23 February 2006).

8.  On 10 January 2007, the TXARNG published Orders 010-1008 promoting her to the rank of first lieutenant (1LT) with an effective date of 25 February 2007 and a date of rank (DOR) of 25 February 2005.  It is unclear why her DOR is listed as 25 February 2005.
9.  On 1 March 2007, NGB issued Special Orders Number 47 AR extending her Federal recognition for promotion to 1LT with an effective date of 25 February 2007.

10.  On 21 March 2008, she was awarded a Bachelor of Science in Business Administration.

11.  On 26 February 2009, the TXARNG published Orders 057-1139 promoting her to the rank of captain (CPT) with an effective date of 5 June 2009 and a DOR of 25 February 2007.  Again, it is unclear why her DOR was backdated by 2 years.  Nevertheless, her promotion to CPT appears to be a unit vacancy promotion.

12.  On 8 June 2009, NGB issued Special Orders Number 138 AR extending her Federal recognition for promotion to CPT with an effective date of 5 June 2009.

13.  In a self-authored statement the applicant states, in part, prior to attending OCS, COL S****, the Chief of the Joint Staff (CJS), personally appointed her to positions where she was supervising personnel who out-ranked her.  It was apparent to her that he had more than a professional interest in her and on many occasions his actions made her feel uncomfortable.  In February 2003, she was boarded at her unit and selected to attend OCS starting in March 2003.  In May 2003, she was approved to attend accelerated OCS, and placed as number 1 on the OML.  In June 2003, she found out COL S**** personally had her removed from the OML without giving a reason.  She emailed COL S**** and asked for a meeting.  He declined to meet with her by responding that unless someone who out-ranked him told him, he was not going to reconsider.  She also stated that being singled out and removed from the OML by name by COL S**** without cause led her to believe it was personal in nature.  As CJS, COL S**** had a significant effect on the careers of Soldiers and because she and her husband were junior officers she was afraid of reprisal if she sought resolution through the TXARNG.  She waited until he retired before she did so.

14.  The applicant also provides a Joint Force Headquarters memorandum, dated 12 June 2008, wherein an official at the Headquarters stated he had personal knowledge of her circumstances and agreed it was not normal for the CJS to interject himself into the applicant's attendance at accelerated OCS while allowing others in the same situation to attend.  The official further stated the applicant had a valid "prima facia" case against the state and specifically COL S**** but the state did not possess the authority to amend her commission service date (appointment date).  The official recommended she forward an appeal to the Army Board for Correction of Military Records. 

15.  An advisory opinion was received on 10 January 2011 in the processing of this case.  An official at NGB recommended approval of the applicant's request to adjust her commission service date from 25 September 2005 to 13 September 2003, a difference of 532 [sic] (531) days, correspondingly adjusting her promotion dates to 1LT and CPT by 532 days each, and granting her all required back pay and allowances incident to the adjustments.  The official stated the applicant was removed from the OML for attendance of accelerated OCS by the State CJS and there were allegations of impropriety regarding the CJS's decision that appear to be substantiated by the State.  She would have received a commission service date of 13 September 2003 if she had completed the 2003 accelerated course instead of 25 February 2005.  The state concurred with the recommendation.

16.  She concurred with the advisory opinion on 13 January 2011.

17.  National Guard Regulation 600-100 (Commissioned Officers - Federal Recognition and Related Personnel Actions), paragraph 8-1, states the promotion of officers in the ARNG is a function of the State.  As in original appointments, 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 herein.

DISCUSSION AND CONCLUSIONS:

1.  The available records show in May 2003 the applicant was placed on the OML to attend accelerated OCS.  If she had not been improperly removed from the OML and if she had been allowed to attend the 2003 accelerated OCS program, she would have received an initial appointment date of 13 September 2003 to 2LT.  

2.  It appears she may have suffered an injustice by being removed from the OML.  Therefore, as a matter of equity, her records should be corrected by adjusting her initial appointment date of 2LT from 25 February 2005 to 13 September 2003 and adjusting her effective date and DOR to 1LT accordingly with entitlement to back pay and allowances.

3.  Furthermore, had the applicant's initial appointment date been correct, it is reasonable to presume she would have also been promoted to CPT for a unit vacancy 2 years after her promotion to 1LT.  It is clear that an administrative error denied her this promotion.  Therefore, as a matter of equity, her records should be corrected by adjusting her effective date and DOR to CPT from 5 June 2009 by 531 days to 22 December 2007 with entitlement to back pay and allowances.

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 Department of the Army records of the individual concerned be corrected by:

	a.  amending NGB Special Orders Number 73 AR, dated 7 March 2005, to show she was extended Federal recognition in the grade of 2LT with an effective date and DOR of 13 September 2003;

	b.  amending NGB Special Orders Number 47 AR, dated 1 March 2007, to show she was extended Federal recognition in the grade of 1LT with an effective date and DOR of 13 September 2005; and

	c.  amending NGB Special Orders Number 138 AR, dated 8 June 2009, to show she was extended Federal recognition in the grade of CPT with an effective date and DOR of 22 December 2007; and

	d.  paying to her all back pay and allowances due as a result of these 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)                                         AR20100015690



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ABCMR Record of Proceedings (cont)                                         AR20100015690



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