IN THE CASE OF:	  

		BOARD DATE:	  4 June 2013

		DOCKET NUMBER:  AR20120010283 


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 promotion to first lieutenant (1LT) retroactive to April 2000.

2.  The applicant states:

	a.  She was in a promotable status at her graduation from the Chemical Officer Basic Course (OBC); however, a week before graduation she was injured while participating in a command-sponsored training event, German Efficiency Badge training.  At the time she was in the best condition of her life, at the top of her OBC course, and earned the Gold Medal for the event.  However, her name was not submitted for promotion because of a profile.

	b.  Her head, neck, and shoulder blade were seriously injured in a fall due to improper safety equipment.  Her injury turned into a permanent disability and ended her military career.  She was unable to wear a protective mask, fire a rifle, or lift over eight pounds.  Movement in her head and neck is severely limited and she is in constant pain.  She suffers from nausea, dizziness, and debilitating headaches that keep her in bed 3 to 4 days per week.  She has not been able to work either in the civilian or military sector due to injuries.  Pain is with her every moment of the day.

	c.  The Illinois Army National Guard (ILARNG) never changed her status or submitted her name for promotion although completion of all the time-in-grade requirements was in her file.

3.  The applicant provides:

* self-authored statements
* DA Form 705 (Army Physical Fitness Test (APFT) Scorecard)
* congressional correspondence

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  On 29 August 1999, the applicant was appointed a second lieutenant (2LT) in the ILARNG.  She attended and successfully completed OBC during the period 29 November 1999 through 26 April 2000.

3.  On 23 April 2000, she incurred injuries which were documented and found to be in the line of duty.

4.  On 26 April 2000, she was released from active duty training.

5.  Records show she was in a non-rated status due to her injuries and had a profile during the period 27 April 2000 through 26 April 2005.

6.  A DA Form 199 (Physical Evaluation Board (PEB) Proceedings), dated 20 September 2007, shows she was found medically unfit to perform the duties required of a Soldier of her rank and primary specialty.  The PEB rated her  chronic radiating neck pain, evaluated as cervical strain, at a 30 percent disability level and recommended she be placed on the Temporary Disability Retired List (TDRL).

7.  Orders Number D264-02, U.S. Army Physical Disability Agency, Washington, DC, dated 20 September 2007, placed her on the TDRL effective 24 October 2007 in the rank of 2LT.

8.  She was issued a National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) by the ILARNG with an effective date of 24 October 2007.  Her rank is shown as 2LT and her date of rank is shown as 29 August 1999.

9.  Special Orders Number 283 AR, NGB, Washington, DC, dated 15 November 2007, show the applicant was honorably discharged on 24 October 2007 in the rank of 2LT.

10.  On 23 May 2012, an advisory opinion was obtained from the Chief, Personnel Policy Division, NGB, Arlington, VA.  This official recommended approval of the applicant's request with an effective date of promotion of 1 March 2001, the date she met the 18-month time-in-grade (TIG) requirements.  Further, the State concurred with this recommendation.

11.  On 12 March 2013, a copy of the advisory opinion was provided to the applicant.  She did not respond within the time allotted.

12.  The applicant provides self-authored statements submitted through a member of Congress and her APFT scorecard.

13.  National Guard Regulation 600-100 (Commissioned Officer - Federal Recognition and Related Personnel Actions) provides procedures for processing all applications for Federal Recognition.

	a.  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.  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.  Paragraph 2-13 states 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 member, 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.  Paragraph 10-15b states that temporary Federal Recognition may be granted by a Federal Recognition Board to those eligible when the board finds that the member has successfully passed the examination prescribed herein, has subscribed to the oath of office, and has been appointed by a State order for assignment to a position vacancy in a federally recognized unit of the ARNG.  The Federal Recognition Board will forward the NGB Form 89 and allied documents to The Adjutant General.  When the member is favorably recommended, The Adjutant General will endorse the packet to the NGB.  If the member meets the qualifications and requirements for Federal Recognition, the Chief, NGB extends permanent Federal Recognition to the member in the grade and branch in which the member is qualified.

14.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) provides policy for selecting and promoting commissioned officers of both the ARNG and USAR.

	a.  Paragraph 2-1 states, in pertinent part, that an officer in the grade of second lieutenant will be considered for promotion without review by a selection board.  The officer's records will be screened to determined eligibility for promotion to the next higher grade far enough in advance to permit promotion on the date the promotion service is completed in compliance with table 2-1 or table 2-3 of this regulation.

	b.  Paragraph 2-7 states to be eligible for selection, an ARNG or USAR officer who meets the eligibility requirements must be properly in an active status and participating satisfactorily in Reserve training.  For promotion purposes, an officer is deemed to be a satisfactory participant  and in full compliance with the commander's instructions if, within the past 12 months before the convene date of the board, the officer has not been reassigned, transferred, or separated as an unsatisfactory participant under Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures).  In addition, the officer must not be being processed for such action on the selection board convening date.

	c.  Table 2-1 states that the minimum time in grade as a second lieutenant for promotion to first lieutenant is 2 years.

	d.  Table 2-2 of states, in pertinent part, those second lieutenants must complete a resident officer basic course to be eligible for promotion to first lieutenant.

	e.  Paragraph 4-12 (Medical Examination) states each Ready Reserve officer is required to undergo a medical examination (Army Regulation 40-501 (Standards of Medical Fitness)) at least once every 5 years.  A partial or temporary physical disability resulting from a disease, wound, or injury will not disqualify an officer for promotion.

	f.  Paragraph 4-31 (Not Qualified for Promotion) states for ARNG officers in the grade of 2LT and USAR officers in the grades of warrant officer one and 2LT:

		(1)  If found not qualified for promotion to the grade chief warrant officer two or 1LT, a final determination will be made by the following:  area commanders for unit officers and overseas residents and the Commander, Human Resources Command, St. Louis for all others.

		(2)  The names of officers in the grade of 2LT found not qualified for promotion and the reasons for disqualification will be reported to the commander concerned.  A memorandum of non-selection, to include eligibility for further consideration while being retained in an active status, will be sent to each officer determined not qualified for promotion.  A copy of the memorandum of non-selection will be placed in the officer's military personnel jacket and official military personnel file, now known as the Army Military Human Resource Record.

		(3)  The officer, if not discharged or promoted sooner, will be discharged no later than 18 months from the date on which the officer is first found not qualified for promotion, but in no case later than 42 months after the officer's original appointment.  Discharge will be made without regard to remaining military service obligation.

15.  NGB Policy Memorandum 08-035 (Reduction in the Time in Grade Requirements for Promotion of Reserve Component Officers to First Lieutenant), dated 25 November 2008, states, in part:

	a.  This policy authorizes all National Guard officers in the rank of 2LT on the Reserve Active-Status List to be promoted with a minimum of 18 months TIG.

	b.  2LT's may be promoted at 18 months TIG provided they have completed OBC and are otherwise qualified.  The effective date of promotion will not precede 19 August 2008.

16.  Department of the Army memorandum, subject:  Grade of Officers When Retiring or Separating for Physical Disability, dated 27 January 2009, paragraph 3(a), states, "In accordance with sections 1212 and 1372, Title 10, United States Code, this memorandum prescribes Army grade-determination policy for officers who, because of physical disability are separated, retired, or retired and placed on the TDRL.  These officers would otherwise have been promoted, had it not been for their physical disability, when they had attained the maximum TIG or reached their promotion sequence number, as applicable, and had satisfied all other statutory and regulatory criteria for promotion to the higher grade in the applicable Army component."

	a.  The U.S. Army Physical Disability Agency is the responsible organization for implementing the provisions of Title 10, United States Code, sections 1212 and 1372.

	b.  This policy memorandum does not authorize the actual promotion of officers covered by the policy who are retired or separated because of physical disability.  Therefore, promotion orders will be published for these officers.

	c.  Officers must be on a promotion nomination scroll approved by the Deputy Secretary of Defense (and confirmed by the Senate, if required) prior to the effective date of retirement or separation because of Physical Disability.

17.  Title 10, U.S. Code, section 1372 (Grade on Retirement for Physical Disability:  Members of the Armed Forces) states, in part, unless entitled to a higher retired grade under some other provision of law, any member of an armed force who is retired for physical disability under section 1201 or 1204 of this title, or whose name is placed in the temporary disability retired list under section 1202 or 1205 of this title, is entitled to the grade equivalent to the highest of the following, in pertinent part, the permanent Regular or Reserve grade to which he or she would have been promoted had it not been for the physical disability for which he or she is retired and which was found to exist as a result of a physical examination.



DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for retroactive promotion to 1LT to April 2000 was carefully considered.

2.  The advisory official, with the State's concurrence, recommends approval of the applicant's request.  However, the advisory official cited promotion procedures and policies that became effective after the applicant's retirement.

3.  The minimum criteria in effect at the time of the applicant's promotion eligibility to 1LT required 2 years of TIG and completion of OBC.  She completed OBC in April 2000; however, she injured herself in April 2000 and was unable to perform any military duties.  Nonetheless, her record is void of evidence disqualifying her for promotion to 1LT.  No action was taken to process her through medical channels until several years after her injury.

4.  Nevertheless, she met the TIG requirement in 2001; however, the ILARNG never changed her status until the PEB placed her on the Temporary Disability Retired List on 24 October 2007.

5.  Army Regulation 135-155 states a partial or temporary physical disability resulting from a disease, wound, or injury will not disqualify an officer for promotion.  Therefore, since the applicant's 2LT date of rank was 29 August 1999, she reached her 2-year TIG requirement on 29 August 2001 although she was injured and not performing her assigned duties.

6.  In view of the above, the applicant should be promoted to 1LT effective 29 August 2001 with entitlement to back pay and allowances.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x___  ___x____  ____x___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army and State Army National Guard records of the individual concerned be corrected by:

	a.  promoting her to 1LT with an effective date of 29 August 2001;

	b.  amending her DA Form 199 to show her rank as 1LT;

	c.  amending Orders Number D264-02, U.S. Army Physical Disability Agency, Washington, DC, dated 20 September 2007, to show she was placed on the TDRL in the retired grade of 1LT;

	d.  amending Orders Number 312-026, Department of Military Affairs, State of Illinois, Camp Lincoln, Springfield, IL, dated 8 November 2007, to show her rank as 1LT;

	e.  amending her NGB Form 22 to show she was retired with the rank/grade of 1LT/0-2 with a date of rank of 29 August 2001; and

	f.  paying her any pay and allowances or retired pay due based on the above corrections.

2.  The Board further determined 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 promotion to 1LT with an effective date of rank of April 2000.



      _______ _   _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)                                         AR20120010283



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ABCMR Record of Proceedings (cont)                                         AR20120010283



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