IN THE CASE OF:	  

		BOARD DATE:	  19 April 2012

		DOCKET NUMBER:  AR20110011997 


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) and effective date of promotion as a first lieutenant (1LT) from 30 November 2010 to 18 September 2009
* constructive service credit for his prior service

2.  Upon submitting a rebuttal to the advisory opinion obtained in the processing of this case, the applicant requested immediate promotion to captain (CPT).

3.  The applicant states:

* He was reappointed as a commissioned officer on 18 March 2008 and he completed all the requirements for promotion including civilian and military education, and he was eligible for promotion to 1LT on 18 September 2009
* He previously served as a commissioned officer but he resigned his commission prior to being promoted; he was not given constructive credit for his prior commissioned service
* His recent promotion was delayed due to suspension of his security clearance following a renewal application 1 month prior to his expected promotion date
* He believes the delay in his promotion constitutes an injustice and his promotion should be backdated
* 
The suspension of his clearance was lifted in November 2010 but he continued to serve honorably and in an active status
* His delayed promotion impacts his future promotion to CPT and prohibits him from being considered for positions that he would be otherwise qualified for if his DOR had been correct 

4.  The applicant provides:

* Appointment order
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Three DA Forms 67-9 (Officer Evaluation Report)
* Email exchange
* College Transcripts
* Orders 079-334 (discharge orders)
* DA Form 71 (Oath of Office - Military Personnel)

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 1 September 1992 and he held military occupational specialty 19K (Armor Crewman).  He was honorably discharged on 1 August 1995 to enter an officer training program.  His DD Form 214 for this period of service shows he completed 2 years, 11 months, and 1 day of creditable active service.

2.  He was appointed as a Reserve commissioned officer in the rank of second lieutenant (2LT) and he executed a DA Form 71 on 7 August 1999.  He entered active duty on that date, completed various training courses, and served in a variety of assignments.

3.  He was honorably discharged from active duty on 7 February 2001 in the rank of 2LT after having elected to resign in lieu of trial by a court-martial.  His
DD Form 214 for this period of service shows he completed 1 year, 6 months, and 1 day of creditable active service.

4.  He enlisted in the Indiana ARNG on 20 November 2003 and he served in a variety of assignments.  He was discharged from the ARNG on 17 March 2008.  His National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) is not available for review with this case.

5.  He was appointed as a Reserve 2LT in the Maryland Army National Guard (MDARNG) and he executed an NGB Form 337 (Oaths of Office) on 18 March 

2008.  He was assigned to the 200th Military Police Company, Catonsville, MD.  He subsequently completed the Military Police Officer Transition Course from
8 to 27 June 2008.

6.  On 26 May 2009, a military attorney in the MDARNG submitted a memorandum for record wherein he stated the applicant addressed all issues related to his debt management program that impacted his security clearance.  The attorney added the applicant had made a concerted effort to gain control of his financial situation and should not have his security clearance revoked.

7.  On 13 August 2009, the U.S. Army Personnel Security Appeals Board denied the applicant’s appeal of the denial of his security clearance.  The decision was made due to the applicant’s failure to meet his financial obligations.  He was also advised he may submit a request for reconsideration after 1 year.

8.  On 2 September 2009, the State Security Officer notified the applicant through his chain of command that his appeal of the security clearance denial was denied based on his history of not meeting his financial obligations.

9.  On 1 December 2010, the MDARNG published Orders 335-120 promoting him to 1LT with an effective date and DOR of 30 November 2010.

10.  On 9 December 2010, the NGB published Special Orders Number 273 AR extending him Federal recognition for this promotion to 1LT effective 30 November 2010.

11.  During the processing of this case, on 16 February 2012, an advisory opinion was obtained from the NGB, Chief, Personnel Policy Division.  The advisory official recommended disapproval of the applicant's request.  The official stated:

* Based on the applicant's appointment on 18 March 2008, the earliest he was eligible for promotion to 1LT was 18 March 2010
* At the date of his promotion eligibility, he was not fully qualified for promotion to 1LT because of his suspended security clearance
* The applicant required a minimum of a secret security clearance
* Once his suspension was lifted on 30 November 2010, he was eligible for promotion on that date
* Eligibility does not mean automatic promotion and promotion is not used to reward past performance
* The effective date of promotion in the higher grade is the date the Soldier is granted Federal recognition in the higher grade

12.  On 21 February 2012, the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal. On 12 March 2012, the applicant replied with a rebuttal wherein he states:

* He was eligible for promotion to 1LT on 18 September 2010 because 2LTs can be promoted with a minimum of 18 months time in grade
* He received no time in grade for his prior commissioned officer service; based on his prior service, his 2LT date of rank should be 18 September 2006
* His security clearance was suspended on 13 August 2009, 1 month prior to his date of eligibility for promotion
* His previous security clearance was still valid but the investigation had not been completed
* He knows of other officers whose promotions were backdated after their security clearance issue had been cleared up
* He is not concerned with the money or the back pay; he is concerned with the impact this change would have on his future eligibility for promotion to CPT

13.  Title 10, U.S. Code, section 12207 (commissioned officers, service credit upon original appointment) states for the purpose of determining the grade and the rank within grade of a person receiving an original appointment as a reserve commissioned officer (other than a commissioned warrant officer) in the Army, Navy, Air Force, or Marine Corps, the person shall be credited at the time of the appointment with any commissioned service (other than service as a commissioned warrant officer) performed before such appointment as a regular officer, or as a reserve officer in an active status, in any armed force, the National Oceanic and Atmospheric Administration, or the Public Health Service.  The Secretary of Defense shall prescribe regulations, which shall apply uniformly among the Army, Navy, Air Force, and Marine Corps, to authorize the Secretary of the military department concerned to limit the amount of prior commissioned service with which a person receiving an original appointment may be credited under paragraph (1), or to deny any such credit, in the case of a person who at the time of such appointment is credited with constructive service under subsection (b).  The law defines original appointment as the most recent appointment. 

14.  Department of Defense Instruction (DODI) Number 1312.3 prescribes policies and procedures governing the granting of service credit to persons upon appointment, designation, or assignment as Regular commissioned officers, except those in health professions.  It states in paragraph 4.2.1. (Prior Active Commissioned Service Credit) that credit for prior service as a commissioned officer may not exceed 1 year for each year of the following:  4.2.1.1. Active duty commissioned service or commissioned service in an active status (except as a commissioned warrant officer) including periods of active duty for training.

15.  Title 10, U.S. Code, section 14301 (Eligibility for consideration for promotion) states an officer is eligible under this chapter for consideration for promotion by a promotion board convened under section 14101(a) of this title only if the officer is on the reserve active-status list (RASL) of the Army and during the one-year period ending on the date of the convening of the promotion board the officer has continuously performed service on either the RASL or the active-duty list (or on a combination of both lists). 

16.  Title 10, U.S. Code, section 14308f states the effective date of a promotion of a reserve commissioned officer of the Army or the Air Force who is extended Federal recognition in the next higher grade in the ARNG under Title 32, section 307 or 310 shall be the date on which such Federal recognition in that grade is so extended.

17.  Army Regulation 135-155 (Army National Guard and Army Reserve Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes the policies and procedures for the promotion of Reserve Component officers.  

	a.  Table 2-1 provides the time in grade (TIG) requirements for promotion of commissioned officers.  It states for promotion from 2LT to 1LT, the minimum number of years in the lower grade is 2 years and the maximum number of years in the lower grade is 42 months.  It also states for promotion from 1LT to CPT, the minimum number of years in the lower grade is 2 years and the maximum number of years in the lower grade is 5 years.

	b.  Paragraph 4-11 states an officer who has been recommended for promotion to the next higher grade must meet various requirements before being promoted in the Reserve components.  Among them is that the officer must have undergone a favorable security screening.

18.  Office of the Assistant Secretary of the Army, Washington, DC, memorandum, Subject: Reduction in the Time in Grade Requirements for Promotion of Reserve Component Officers to 1LT, dated 19 August 2008, authorized Reserve Component 2LTs on the RASL to be promoted with a minimum of 18 months time in grade and completion of the Basic Officer Leadership Course (BOLC), if otherwise qualified.  Commanders and State Adjutant Generals retain the authority to disapprove promotions.

19.  National Guard Regulation 600-100 (Commissioned Officers - Federal Recognition and Related Personnel Actions) prescribes policies and procedures governing the appointment, assignment, temporary Federal recognition, Federal recognition, reassignment, and other personnel issues related to commissioned officers of the ARNG.  It states commissioned officers of the ARNG are appointed by the several States.  These appointments may be federally recognized by the Chief, NGB, under such regulations as the Secretary of the Army may prescribe and under the provisions of this regulation.

20.  National Guard Regulation 600-100, chapter 8, states the promotion of officers in the ARNG is a function of the State, and 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 promotion requirements.  It also states a commissioned officer must complete the required minimum years of promotion service prior to being considered for promotion and Federal recognition in the higher grade.  Promotion from 1LT to CPT requires a minimum of 2 years time in grade.

21.  National Guard Regulation 600-100, paragraph 8-2 states promotion criteria is based on efficiency, time in grade, time in commissioned service, demonstrated command and staff ability, military and civilian education, and potential for service in the next higher grade.  Promotion is not used solely as a reward of past performance.

22.  Army Regulation 135-100 (Appointment of Commissioned and warrant Officers of the Army) prescribes policy and procedures for the appointment of commissioned and warrant officers in the ARNG and USAR.   Paragraph 1-9 states former officers will be appointed in the highest grade entitled by Title 10, U.S. Code, section 3359.  An officer with less than 3 years of commissioned service will be appointed as a 2LT.  A commissioned officer of a regular component who is discharged or who resigns may be appointed as a Reserve commissioned officer.  The appointment will be in the grade, with time in grade for promotion purposes equal to the amount of time in the permanent grade held as a regular officer at the time of discharge or resignation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends:

* his effective date of promotion and DOR as a 1LT should be adjusted from 30 November 2010 to 18 September 2009
* he should receive constructive service credit for his prior service
* he should be promoted immediately to CPT

2.  With respect to the constructive service credit, the applicant previously served as a Reserve commissioned officer from 7 August 1999 to 7 February 2001.  Upon his most recent reappointment in the MDARNG on 18 March 2008, he was appropriately appointed as a 2LT (he had less than 3 years of commissioned service); however, he should have received service credit for one year for his prior commissioned service of 1 year, 6 months, and 1 day of creditable active service, as required by DODI Number 1312.3 which would have adjusted his DOR as a 2LT to 18 March 2007.  Therefore, he is entitled to correction of his 2LT DOR to show 18 March 2007.

3.  With respect to the promotion to 1LT:

	a.  he was appointed as a 2LT in the MDARNG on 18 March 2008, and he should have been given an adjusted date of rank of 18 March 2007 (the maximum allowable credit of 1 year for his prior commissioned service).  In order to be considered for promotion to 1LT, his promotion eligibility date would have been 18 months from his DOR as a 2LT based on the guidance provided by the Office of the Assistant Secretary of the Army that authorized Reserve Component 2LTs on the RASL to be promoted with a minimum of 18 months TIG and completion of the BOLC, if otherwise qualified, i.e. 18 September 2008.  

	b.  However, by law, in order to be considered for promotion to the next higher grade, he would have been required to be on the RASL for at least one year.  The earliest he could have been considered for promotion would have been 18 March 2009 (one year from the date of his appointment).

	c.  But even then, the applicant was not fully qualified for promotion on that date.  Having had his security clearance suspended placed him in a non-promotable status.  Therefore, he was ineligible for an earlier promotion.  Once the suspension was lifted on 30 November 2010, the State promoted him and the NGB extended his Federal recognition.  

4.  With respect to his promotion to CPT, for promotion from 1LT to CPT the minimum number of years in the lower grade is 2 years and the maximum number of years in the lower grade is 5 years.  Unless the applicant is considered for promotion by a State vacancy board after having completed 2 years time in grade (30 November 2012), the earliest he would be eligible for promotion by a mandatory board would be upon reaching the maximum number of years in the lower grade of 5 years, or 30 November 2015.


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 a recommendation for partial relief.  As a result, the Board recommends that the state Army National Guard records and the Department of the Army records of the individual concerned be corrected by adjusting his 2LT date of rank to
18 March 2007.

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:

* correction of his date of rank and effective date of promotion as a first lieutenant from 30 November 2010 to 18 September 2009
* immediate promotion to captain



      ___________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)                                         AR20110011997



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ABCMR Record of Proceedings (cont)                                         AR20110011997



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