IN THE CASE OF:	  

		BOARD DATE:  31 January 2013

		DOCKET NUMBER:  AR20120005302 


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 adjustment of his date of rank to second lieutenant (2LT) from 16 December 2010 to 29 August 2009, promotion to first lieutenant (1LT) effective 29 February 2010, and payment of all back pay and allowances as a result of these corrections.  He also requests reinstatement of a bonus for critical military occupational specialty (MOS) 12B (Combat Engineer).

2.  The applicant states he completed Officer Candidate School (OCS) on 
29 August 2009; however, because it took so long for his civil conviction waiver to be approved at the National Guard Bureau (NGB), he was not able to take the oath of office until 16 December 2010.  He contends the error occurred through no fault of his own.

3.  The applicant provides Texas Army National Guard (TXARNG) appointment orders, OCS completion certificate, NGB civil conviction waiver, NGB Form 337 (Oaths of Office), DA Form 71 (Oath of Office - Military Personnel), DA Form 1059 (Service School Academic Evaluation Report), and several email messages.

CONSIDERATION OF EVIDENCE:

1.  After having had prior service in the U.S. Air Force, the applicant enlisted in the TXARNG on 13 March 2007.

2.  On 29 December 2007, the 949th Forward Support Battalion of the TXARNG requested to the Adjutant General of Texas a waiver of civil conviction for the applicant in order to attend OCS.

3.  He completed OCS on 29 August 2009 and he executed his oath of office in the TXARNG on the same date.

4.  On 24 March 2010, the 949th Brigade Support Battalion of the TXANRG submitted a second request to the Adjutant General of Texas for a waiver of civil conviction for the applicant.

5.  On 25 May 2010, the NGB approved the civil conviction waiver.

6.  Orders Number 351-1026, issued by the TXARNG, dated 17 December 2010, appointed the applicant as a 2LT in the ARNG effective 16 December 2010.

7.  NGB Special Orders Number 168 AR, dated 25 July 2011, extended the applicant Federal recognition for the purpose of initial appointment as a 2LT, effective 16 December 2010.

8.  He completed the Basic Officer Leader Course (BOLC) on 9 March 2012.

9.  Orders Number 152-1023, issued by the TXARNG, dated 31 May 2012, promoted the applicant to 1LT effective 17 June 2012.

10.  NGB Special Orders Number 325 AR, dated 11 September 2012, extended the applicant Federal recognition for the purpose of promotion to 1LT, effective 17 June 2012.

11.  A search of his Army Military Human Resource Record (AMHRR) failed to reveal a copy of his officer service agreement or verification of an approved bonus control number.

12.  During the processing of this case, an advisory opinion was obtained from the NGB Personnel Policy Division.  The advisory official recommended partial relief of the applicant's request.  He stated:

	a.  The Soldier submitted a request for a waiver regarding his civil conviction but evidence has not been provided to show when the waiver request was submitted.  The waiver was approved on 25 May 2010 and as a result, the earliest the Soldier could have been appointed to the TXARNG was 25 May 2010.  The Soldier suggests there was a significant delay in the processing of his 

waiver request.  In January 2010, an email from a TXARNG representative states in part "with your waiver, unfortunately you were being told it was pending NGB approval when in fact it had never been pushed to the State for review."  Email traffic within the same message indicates the person that handles waiver requests had been out of the office frequently due to serious illness.  With this in mind, consideration can be given to the fact that the waiver request could have been approved sooner if it had not been for the suggested administrative errors which were due to no fault of the Soldier.

	b.  Evidence has not been provided indicating the Soldier was eligible to receive a bonus.

	c.  The State supports amending the Soldier's date of rank and promoting him to 1LT at the earliest date of eligibility.

13.  The advisory opinion was provided to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  On 28 December 2012, via email, the applicant responded and indicated he agreed with the advisory opinion except to that portion indicating the bonus should not be reinstated.  He contends he spoke to a major about the issue and the major indicated he could see that he was qualified for the bonus and that a control number had been requested but the request was later pulled.  He also indicated he did not know if he could provide any documentation because he was deployed to Afghanistan at the time he provided the response to the advisory opinion.

14.  Army Regulation 350-51 (United States Army Officer Candidate School), paragraph 5-8 states the graduate's OCS application DA Form 61 will also be used as the application for appointment as a Reserve commissioned officer of the Army.  An OCS graduate who tenders an appointment becomes a commissioned officer upon taking the oath of office and executing a DA Form 71. This act serves as acceptance of the appointment under the provisions of title 10, U.S. Code, section 12203.

15.  National Guard Regulation 600-100 (Commissioned Officers - Federal Recognition and Related Personnel Actions), paragraph 2-9, provides that applicants with a record of prior convictions are ineligible for Federal recognition unless a waiver is granted.  Waiver authority is the Chief, NGB.

16.  NGB Personnel Policy Memorandum 08-035, dated 25 November 2008, and Department of the Army, Office of the Assistant Secretary of the Army (Manpower and Reserve Affairs) Memorandum, dated 19 August 2008, establishes Department of the Army policy for promotion to 1LT.  It states 

Reserve Component 2LTs on the Reserve Active Status List will be promoted to 1LT with a minimum of 18 months time in grade and completion of BOLC, if otherwise qualified.

17.  Title 37, U.S. Code, section 308j(b), states the Secretary concerned may pay an accession bonus under this section to an eligible person who enters into an agreement with the Secretary to (a) accept an appointment as an officer in the Armed Forces, and (b) to serve in the Selected Reserve of the Ready Reserve in a skill designated under paragraph (2) for a period specified in the agreement.  Paragraph (2)(a) states the Secretary concerned shall designate for an Armed Force under the Secretary's jurisdiction the officer skills to which the authority under this subsection is to be applied.  Paragraph (2)(b) states a skill may be designated for an Armed Force under subparagraph (a) if, to mitigate a current or projected significant shortage of personnel in that Armed Force who are qualified in that skill, it is critical to increase the number of persons accessed into that armed force who are qualified in that skill or are to be trained in that skill.  Paragraph (b) states an accession bonus payable to a person pursuant to an agreement under this section accrues on the date on which that agreement is accepted by the Secretary concerned.

18.  National Guard Regulation 600-7 (Selected Reserve Incentive Program), paragraph 2-5, states enlistment bonus contracts are valid only with bonus control numbers which will be issued from the State Incentive Management Office to Military Entrance Processing Station counselors and reported to NGB on a monthly basis.  The State Incentive Manager will verify accession packets as prescribed by state policy for bonus control numbers, accuracy of enlistment contract and bonus addendum, critical skill and bonus unit eligibility, valid position vacancy, and required educational level.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for correction of his dates of rank to 2LT and 1LT and reinstatement of a critical MOS bonus has been carefully reviewed.

2.  Evidence shows the applicant completed OCS on 29 August 2009.  However, evidence further shows he had a civil conviction at the time that required an approved waiver from the Chief, NGB.  Although it appears there was a delay in the processing of the waiver request by the TXARNG personnel, the fact is that the waiver was subsequently approved on 25 May 2010.  Therefore, the earliest date he could have been appointed to the TXARNG was the date of the waiver approval.

3.  Based on the corrected date of rank to 2LT of 25 May 2010, the minimum time in grade for promotion to 1LT should have been 25 November 2011; however, he completed the BOLC on 9 March 2012.  Therefore, it would be equitable to adjust his date of rank to 1LT to 9 March 2012.

4.  A search of his AMHRR failed to reveal and he did not provide a copy of his officer service agreement or verification of an approved bonus control number.  Because these documents are not available, it cannot be established at this time whether a bonus was included in his officer service agreement.  Absent such evidence, there is no basis to grant this portion of his request.

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

	a.  amending NGB Special Orders Number 168 AR, dated 25 July 2011, to show he was granted Federal recognition as a 2LT effective 25 May 2010;

	b.  amending NGB Special Orders Number 325 AR, dated 11 September 2012, to show he was granted Federal recognition as a 1LT effective 9 March 2012; and 

	c.  providing him all back pay and allowances due as a result of these correction.

2.  The Board further determined that the evidence presented was 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:

	a.  adjusting his date of rank to 2LT to 29 August 2009;

	b.  adjusting his date of rank to 1LT to 29 February 2010; and 

	c.  paying him a bonus for critical MOS.



      _______ _  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)                                         AR20120005302



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ABCMR Record of Proceedings (cont)                                         AR20120005302



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