BOARD DATE:	  13 September 2012

		DOCKET NUMBER:  AR20120001912 


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.  Prior to his death on 13 December 2011 the applicant requested that his date of rank (DOR) to first lieutenant (1LT) be adjusted from 20 February 2011 to
20 February 2010.  The applicant died 1 month after he submitted his application to this Board.  Therefore, he will be referred to as the former service member (FSM).  

2.  He states he became eligible for promotion to 1LT on 20 February 2010.  His record is unjust because he was never federally recognized as a second lieutenant (2LT) before he became eligible for promotion to 1LT during his deployment in support of Operation Iraqi Freedom.  

3.  He provides:

* Three DA Forms 67-9 (Officer Evaluation Report (OER))
* DA Form 71 (Oath of Office – Military Personnel)
* DA Form 1059 (Service School Academic Evaluation Report)
* National Guard Bureau (NGB) Form 337 (Oaths of Office)
* DA Form 5074-1-R (Record of Award of Entry Grade Credit (Health Services Officers))
* Appointment orders
* DA Form 78-R (Recommendation for Promotion to 1LT/Chief Warrant Officer Two)
* Federal recognition orders


* Promotion orders
* Discharge orders
* Electronic message (email) correspondence 

CONSIDERATION OF EVIDENCE:

1.  The FSM was appointed as a Reserve commissioned officer on 20 August 2008 in the rank of 2LT.  

2.  He completed the Army Medical Department (AMEDD) Basic Officer Leadership Course (BOLC) on 15 June 2009.

3.  He provided a copy of his OER for the period ending 9 September 2009 which indicates he was serving as a Platoon Leader with Company A, 3rd Battalion, 141st Infantry in the rank of 2LT during this period.

4.  On 1 October 2009, he was ordered to active duty in support of Operation Iraqi Freedom.  He served in Kuwait/Iraq from 6 December 2009 to 9 August 2010.  

5.  His DA Form 78-R, dated 4 March 2010, indicates he was recommended for promotion to 1LT.  

6.  On 4 November 2010, he executed an Oaths of Office for appointment in the Texas Army National Guard (TXARNG).

7.  Orders 356-1012, dated 22 December 2010, indicate he was appointed as a 2LT in the ARNG, effective 4 November 2010, in the Medical Service Corps.

8.  His DA Form 5074-1-R approved on 4 January 2011 indicates he was awarded no constructive service credit and his DOR to 2LT was listed as 20 August 2008.

9.  NGB Special Orders Number 164 AR, dated 20 July 2011, extended his Federal recognition for his initial appointment in the ARNG, effective 10 September 2008.

10.  Orders 230-1081, dated 18 August 2011, promoted him to the rank of 1LT, effective 20 February 2010.

11.  NGB Special Orders Number 196 AR, dated 24 August 2011, extended him Federal recognition for promotion to 1LT, effective 20 February 2011.

12.  NGB Orders 009-1, dated 9 January 2012, indicate he was honorably discharged from the ARNG of the United States, effective 13 December 2011.  

13.  NGB Special Orders Number 9 AR, dated, 9 January 2012, withdrew his Federal recognition, effective 13 December 2011.

14.  On 31 January 2012, an advisory opinion was obtained from the NGB, Chief, Personnel Policy Division.  This office recommended approval of the FSM's request to correct his DOR to 1LT from 20 February 2011 to 20 February 2010.  This office recommended the FSM's Federal Recognition Order Number 196 AR, dated 24 August 2011, be amended to show his DOR for promotion to 1LT as 
20 February 2010 and to pay him all back pay and allowances as a result of this correction.

15.  The advisory opinion further stated:  

	a.  the FSM signed his NGB Form 337 on 4 November 2010 as a 2LT, completed the BOLC on 15 June 2009, received constructive credit giving him a DOR to 2LT of 20 August 2008.  Therefore, he became eligible for promotion to 1LT as of 20 February 2010.

	b.  in accordance with National Guard Regulation (NGR) 600-100, paragraph 2-2, "the effective date of Federal recognition for original appointment is the date on which the commissioned officer executes the oath of office in the State."

	c.  evidence has not been provided reflecting the FSM signed an NGB Form 337 upon his completion of the Reserve Officers’ Training Corps program.  A review of his interactive Personnel Electronic Records Management System shows a copy of an Officer Evaluation Report for the period in question indicating he was in a position within the TXARNG at the time.

	d.  in accordance with NGR 600-101, chapter 2, paragraph 2-3, "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 an Federal Recognition Board pending final determination of eligibility and appointment as a Reserve commissioned officer of the Army.  Such recognition may be withdrawn at any time.  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 (Title 32, U.S. Code, section 308).  However, should the initial period of temporary Federal recognition expire due to administrative delays, through no fault of the FSM, a subsequent Federal Recognition Board should be convened to consider the request again and grant another new period of temporary Federal recognition if warranted."  The National Defense Authorization Act, Section 513, "extends the period that members of the National Guard may be granted temporary Federal recognition from 6 months to one year."

	e.  NGB Memorandum, Reduction in the Time in Grade (TIG) Requirements for Promotion of Reserve Component Officers to 1LT (NGB-ARH Policy Memo 08-035), dated 25 November 2008 authorizes all ARNG officers in the rank of 2LT on the Reserve Active-Status List to be promoted with a minimum of 18 months TIG.  2LTs may be promoted at 18 months TIG provided they have completed the BOLC and are otherwise qualified.  The effective date of promotion will not precede 19 August 2008."  DA Form 1059 shows the FSM completed BOLC on 15 June 2009.  Completion of this course meets the eligibility requirements for promotion to 1LT.  The State could have promoted the FSM to 1LT as early as 20 February 2010.  

	f.  A DA Form 78-R shows the TXARNG recommended the FSM for promotion to 1LT as of 3 March 2010.  This would imply the State's intent to promote the FSM when he met the minimum TIG requirement.  NGR 600-100, section 8-1 states "the promotion of officers in the ARNG is a function of the State."

16.  References:

   a.  NGR 600-100 (Commissioned Officer-Federal Recognition and Related Personnel Actions) provides procedures for processing all applications for Federal Recognition.  Paragraph 2-1 states that commissioned officers of the ARNG are appointed by the several States under Article 1, Section 8 of the U. S. Constitution.  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.  Officers who are federally recognized in a particular grade and branch shall be tendered an appointment in the same grade as Reserve commissioned officers of the Army with assignment to the Army National Guard of the United States if they have not already accepted such appointment.  

   b.  NGR 600-100, paragraph 2-2 states that 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.  Paragraph 2-3a states that temporary Federal Recognition upon initial appointment establishes the authorized grade to be used by all officers in their federally recognized status.

   c.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes policy and procedures used for selecting and promoting commissioned officers (other than commissioned warrant officers) of the Army National Guard of the United States and of commissioned and warrant officers of the U.S. Army Reserve.  Table 2-1 states that the minimum TIG as a second lieutenant for promotion to first lieutenant is 2 years.  
   
   d.  NGB Memorandum, Reduction in the TIG Requirements for Promotion of Reserve Component Officers to 1LT (NGB-ARH Policy Memo 08-035), dated 25 November 2008, authorized all ARNG officers in the rank of 2LT on the Reserve Active-Status List to be promoted with a minimum of 18 months TIG.  2LTs may be promoted at 18 months TIG provided they have completed the BOLC and are otherwise qualified.  The effective date of promotion will not precede 19 August 2008. 

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the FSM was initially appointed as a Reserve 2LT on 20 August 2008 and he completed BOLC on 15 June 2009.

2.  However, he was not appointed as a 2LT in the ARNG and granted temporary Federal recognition until 4 November 2010.  

3.  State orders dated August 2011 show he was promoted to 1LT with a date of rank of 20 February 2010.  The FSM was subsequently federally recognized for promotion to 1LT, effective 20 February 2011.

4.  The law was amended to promote all ARNG officers in the rank of 2LT on the Reserve active status list with a minimum of 18 months TIG.  Therefore, the State could have promoted the FSM to 1LT as early as 20 February 2010.  

5.  Based on the applicable law and regulation, the FSM is entitled to have Federal Recognition Order Number 196 AR, dated 24 August 2011, amended to show the effective date of permanent Federal Recognition in the grade of 1LT was 20 February 2010.









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 State Army National Guard and Department of the Army records of the individual concerned be corrected by:
   
   a.  amending Federal Recognition Order Number 196 AR, dated 24 August 2011 to show he was granted Federal recognition for promotion to 1LT, effective 20 February 2010.
   
	b.  paying his beneficiary all back pay and allowances due as a result of this correction.  




      _______ _   __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)                                         AR20120001912



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ABCMR Record of Proceedings (cont)                                         AR20120001912



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