IN THE CASE OF:  	  

		BOARD DATE:  24 March 2015	  

		DOCKET NUMBER:  AR20140012048 


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 record to show his date of rank (DOR) for second lieutenant (2LT)/O-1 is 21 June 2012 and his DOR for first lieutenant (1LT)/O-2 is 21 December 2013.  

2.  He states:

   a.  Through no fault of his own, his military record shows his Oath of Office for 2LT/O-1 has been changed without his authorization and he would like to rectify it.  Additionally, a subsequent promotion to 1LT/O-2 was delayed due to the previous error.  
   
   b.  On 20 July 2012, he joined the Ohio Army National Guard (OHARNG) as a commissioned officer candidate.  He was assigned a paragraph and a line number for an officer slot in the OHARNG.  Afterwards, he commissioned through the Officer Candidate School (OCS) program at Fort Benning, GA.  He received an Oath of Office and an Appointment Letter dated 21 June 2012.  
   
   c.  Upon his return to Ohio, he received a letter of acceptance for a vacancy  with the 135th Military Police (MP) Company signed by Lieutenant Colonel (LTC)  N------, a former commander of the 437th MP Battalion dated 20 June 2012.
   
   d.  On 11 June 2012, Sergeant First Class (SFC) M-------- and Captain (CPT) K------- of the Ohio Officer Strength Management Office processed an application for the National Guard recognition of his Federal officer appointment.  The National Guard Officer Board recognized his appointment on 17 July 2012.  At that time, he believed everything to be correct.  However, he discovered that his DOR had been adjusted from 21 June 2012 to 27 July 2012.  
   
   e.  He was advised that since CPT K------- signed his OHARNG Oath of Office on 27 July 2012, that was now his DOR date for 2LT/O-1.  
   
3.  He provides an appointment letter as a Reserve Officer signed by CPT B-------dated 21 June 2012. 
   
CONSIDERATION OF EVIDENCE:

1.  On 20 July 2011, he enlisted in the OHARNG as a commissioned officer candidate.   He was assigned a paragraph and line number for an officer slot in the OHARNG.

2.  On 21 June 2012, he received his commission through the OCS program at Fort Benning, GA, and his Oath of Office and Appointment Letter.

3.  Upon returning to Ohio, he received a letter of acceptance for a vacancy with the 135th MP Company signed by LTC N-----------, former Commander of the 437th MP Battalion dated 20 June 2012.  

4.  On 11 June 2012, SFC M---------- and CPT K--------- of the Ohio Officer Strength Management Office processed an application for National Guard recognition of his Federal Officer Appointment.  The National Guard Officer Board then recognized his appointment of 17 July 2012.  However, CPT K---------signed the OHARNG Oath of Office on 27 July 2012, thereby creating the applicant's DOR of 27 July 2012.

5.  On 17 December 2013, the applicant requested assistance from the Department of the Army Inspector General's Office.  Upon investigation, it was found that the applicant did not appear before a Federal Recognition (FEDREC) board prior to attending Federal OCS.  The OHARNG was between Senior Army Advisors and, therefore, erroneously did not have a FEDREC from Ohio and was not eligible to be commissioned as a National Guard Officer after completion of OCS.  He should have been commissioned into the U.S. Army Reserve and Ohio would have had to ask the USAR for a conditional release.  Since he received his Ohio FEDREC on 17 July 2012, his oath was matched to his FEDREC date on 
31 July 2012.

6.  The applicant was told to contact the ABCMR to request a change to his DOR. 

7.  In the meantime, on 27 January 2014, the applicant was promoted to 1LT/O-2 with the OHARNG.

8.  An advisory opinion was obtained from the National Guard Bureau (NGB) on 19 November 2014, with a favorable recommendation.  On 20 November 2014, the applicant was provided a copy of the NGB advisory opinion for review and the opportunity to submit comments or rebuttal.  The applicant did  not submit a response to this advisory opinion.  The advisory opinion stated the following:

   a.  The applicant received a letter of acceptance dated 20 June 2012, for an officer duty position in the OHARNG.  He then received orders appointing him as an officer in the OHARNG and was assigned to an officer duty position, effective 27 July 2012.

   b.  The NGB, FEDREC Section, indicated that if there was a slot available, the applicant's promotion effective date and FEDREC date should be the date he graduated from Federal OCS, provided a vacant duty position was available in the State.

   c.  The OHARNG stated a vacant duty position was not the issue; the issue was the applicant did not have a FEDREC board completed at the State and therefore was ineligible to be appointed in the State, until receiving a FEDREC, which was only completed in July 2012.  The FEDREC board could have been conducted earlier; however, it was not due to key personnel turnover with the OHARNG.  

9.  Army Regulation 135-155 prescribes policy and procedures for selecting and promoting commissioned officers (other than commissioned warrant officers) of the ARNG of the United States and commissioned and warrant officers of the U.S. Army Reserve.  The minimum years in time in grade requirement from 2LT/O-1 to 1LT/O-2 is 2 years, with a maximum years in grade of 42 months.

10.  National Guard Regulation 600-100, paragraph 8-8, states:   

   a.  A commissioned officer must complete a minimum of 3 years of promotion service prior to being considered for promotion and Federal recognition in the higher grade.

   b.  An officer in the grade of second lieutenant or first lieutenant who has been assigned and served creditably for at least one year in a position for which
the authorized Modification of Table of Organization and Equipment (MTOE) or Table of Distribution and Allowances (TDA)  grade is captain or higher may be examined by the Federal Recognition Board (FRB) for promotion to the next higher grade.  Further, that officer must have served for at least one year in the grade immediately preceding the rank to which he or she is being promoted.  An officer may be promoted only once under this exception and must meet all other promotion eligibility criteria.

11.  Title 10, U.S. Code, section 12203, provides that appointments of Reserve officers in the grades of lieutenant colonel and below shall be made by the President.  This authority has been delegated to the Secretary of Defense via executive order.  

12.  National Guard Regulation 600-100 provides procedures for processing applications for FEDREC.

	a.  Paragraph 2-1 states 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 ARNG of the United States if they have not already accepted such appointment.

	b.  Paragraph 2-2 states the effective date of FEDREC 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 FEDREC upon initial appointment establishes the authorized grade to be used by all officers in their Federally recognized status.

	c.  Paragraph 2-13 states temporary FEDREC may be extended to an officer who has been appointed in the ARNG of a State and found to be qualified by an FREB 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 FEDREC, temporary FEDREC will automatically terminate 6 months after the effective date of State appointment.  However, should the initial period of temporary FEDREC expire due to administrative processing delays, through no fault of the member, a subsequent FREB should be convened to consider the request again and grant another new period of temporary FEDREC if warranted.

	d.  Paragraph 10-15b states temporary FEDREC may be granted by an Federal Recognition Board (FREB) 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 FREB will forward the NGB Form 89 (ARNG Proceedings of a FREB) 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 FEDREC, the Chief, NGB, extends permanent FEDREC to the member in the grade and branch in which the member is qualified.

	e.  The State must consider all 2LT's for promotion at 18 months whether or not the 2LT is qualified and recommended for promotion.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests correction of his DOR for 2LT/O-1 to 21 June 2012, and correction of his DOR for 1LT/O-2 to 21 December 2013. 
 
2.  In the DAIG investigation, it was discovered that the applicant did not have a FEDREC board completed at the State level and, therefore, was ineligible to be appointed in the OHARNG until 17 July 2012, which was matched to his FEDREC date on 31 July 2012.  

3.  However, in light of the available evidence, a favorable advisory opinion, and as a matter of equity, it would be appropriate to correct the applicant's record by changing his DOR for 2LT/O-1 to 21 June 2012, and to correct his DOR for 1LT/O-2 to 21 December 2013 due to backdating his promotion date to 2LT/O-1 and an exception to policy.  

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 and Department of the Army National Guard records of the individual concerned be corrected by changing his DOR for 2LT/O-1 to 
21 June 2012 and his DOR for 1LT/O-2 to 21 December 2013.  




      ___________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)                                         AR20120002360



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ABCMR Record of Proceedings (cont)                                         AR20140012048



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