IN THE CASE OF:	

		BOARD DATE:	    29 October 2015

		DOCKET NUMBER:  AR20140016569


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:

	a.  correction of his records to show he received Federal recognition for initial appointment as a second lieutenant (2LT) in the Missouri Army National Guard (MOARNG) on 10 April 2012;

	b.  adjustment of his date of rank (DOR) for first lieutenant (1LT) from 25 April 2014 to 10 October 2013; and

	c.  all back pay and allowances as a result of these corrections.

2.  The applicant states, in effect:

	a.  He wants his initial appointment date amended to 10 April 2012 to reflect his original DA Form 71 (Oath of Office – Military Personnel) and National Guard Bureau (NGB) Form 337 (Oaths of Office).

	b.  His DOR for 1LT should also be amended to 10 October 2013 (18 months from his original date of commissioning) with all applicable back pay.

	c.  He was originally told he would be commissioned as a 2LT on 10 April 2012.  He was given a unit paragraph and line number for assignment and a letter of acceptance.  However, when it came time to process his commissioning packet, the MOARNG told him they assigned him to a position in an excess status and couldn't process his packet.

	d.  He was told that officer recruiting was provided an incorrect eligibility checklist and this delayed the process.

	e.  After he was commissioned, he tried to get his commissioning date amended, but he was told nothing could be done.

3.  The applicant provides:

* unit letter of acceptance
* DA Form 71
* NGB Form 337
* supporting email
* active duty orders

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the MOARNG on 6 March 2009.  He completed the Officer Candidate Course in September 2011.

2.  On 10 April 2012, he executed an oath of office as a Reserve commissioned officer in the rank of 2LT.

3.  On 10 April 2012, he executed oaths of office in the MOARNG and he was granted temporary Federal recognition in the rank of 2LT.

4.  On 18 September 2012, he was honorably discharged from the MOARNG in the rank/pay grade of sergeant/E-5 for appointment as a commissioned officer.

5.  On 19 September 2012, he executed an oath of office as a Reserve commissioned officer in the rank of 2LT.

6.  On 19 September 2012, he executed oaths of office in the MOARNG and was granted temporary Federal recognition in the rank of 2LT.

7.  MOARNG Orders 278-102, dated 4 October 2012, show he was appointed as a 2LT in the ARNG effective 19 September 2012.

8.  NGB Special Orders Number 86 AR, dated 25 March 2013, show he was granted Federal recognition for initial appointment in the rank of 2LT effective 19 September 2012.

9.  He completed the Infantry Basic Officer Leader Course (BOLC) on 4 April 2013.

10.  MOARNG Orders 132-300, dated 12 May 2014, show he was promoted to 1LT effective 25 April 2014.  National Guard Regulation 600-100 (Commissioned Officers – Federal Recognition and Related Personnel Actions), paragraph 8-7, was cited as the authority for this promotion.

11.  NGB Special Orders Number 137 AR, dated 19 May 2014, show he was extended Federal recognition for promotion to the grade of 1LT effective 25 April 2014.

12.  In the processing of this case, a staff advisory opinion was obtained from the Chief, Personnel Policy Division, NGB.  NGB recommends approval of the applicant’s request.  The opinion stated:

	a.  On 10 April 2012, the applicant signed the original DA Form 71.

	b.  NGB Special Orders Number 86 AR, dated 25 March 2013, show the applicant's initial appointment effective date to 2LT as 19 September 2012.  The Federal Recognition Branch published these orders based on the State's recommendation for promotion.  The effective date is 5 months past his oath of office date.

	c.  NGB Special Orders Number 137 AR, dated 19 May 2014, show the applicant was promoted to 1LT with an effective date and DOR as 25 April 2014.  The 18-month time-in-grade requirement from his original commissioning date for 2LT to 1LT promotion is based on an erroneous date of 19 September 2012.

	d.  Through no fault of the applicant, the State ARNG did not process his initial appointment in a timely manner which offset his original commissioning and further promotion consideration.

	e.  National Guard Regulation 600-100, paragraph 2-7a, requires those applying for an initial appointment to be assigned "to an authorized position in a federally recognized unit."  The National Guard issued Personnel Policy Operational Memorandum (PPOM) Number 10-033, dated 27 July 2010, which allows assignment of 2LTs to 125 percent of authorized strength per paragraph 7c.  This PPOM also stipulated the State may not "exceed their overall End Strength (ES) limit as established by NGB" per paragraph 4a.

	f.  The MOARNG concurs with this recommendation.

13.  A copy of the advisory opinion was forwarded to the applicant for comment and possible rebuttal.  He did not respond.

14.  National Guard Regulation 600-100 states:

	a.  The effective date of Federal recognition for original appointment is that date on which the commissioned officer executes the oaths of office in the State.

	b.  Temporary Federal recognition upon initial appointment establishes the authorized grade to be used by all officers in their Federally-recognized status.

	c.  Section II (Promotion to Fill Unit Vacancies), paragraph 8-7 (Eligibility for Promotion), states to be considered for Federal recognition and subsequent Reserve of the Army promotion following State promotion to fill a unit vacancy, an ARNG commissioned officer must:

* be in an active status
* be medically fit and meet the height and weight standards
* have completed the minimum years of promotion service
* have completed the minimum military education requirements
* have completed the minimum civilian education requirements
* have passed an Army Physical Fitness Test within the time frame prescribed

15.  Authority granted to the Secretaries of the Military Departments in Secretary of Defense memorandum, dated 9 December 1982, subject:  Redelegation of Authority under Executive Order 12396, to appoint officers under Title 10, U.S. Code, section 624, in the grades of O-2 and O-3 was rescinded effective 1 July 2005 based on advice from the Department of Justice that prohibits redelegation below the Secretary of Defense of the President's authority to appoint military officers.  All military officer appointments under Title 10, U.S. Code, section 12203, including original appointments, in the Reserve of the Army, Reserve of the Air Force, Naval Reserve, and Marine Corps Reserve, not previously approved by 30 June 2005 shall also be submitted to the Secretary of Defense.



DISCUSSION AND CONCLUSIONS:

1.  The applicant executed an oath of office as a Reserve commissioned officer in the rank of 2LT on 10 April 2012 upon completion of Officer Candidate School.  However, his records show he was honorably discharged from the MOARNG in the rank/pay grade of sergeant/E-5 on 18 September 2012 for appointment as a commissioned officer.  He was granted Federal recognition for initial appointment in the rank of 2LT effective 19 September 2012.

2.  The NGB advisory opinion states, in effect, the responsible State ARNG did not process the applicant's initial appointment in a timely manner through no fault of the applicant.  The delay in the applicant's original commissioning date offset his eligibility for consideration for further promotion.  NGB recommended approval of the applicant's request and the respective State ARNG concurred with the recommendation.

3.  The NGB advisory opinion notes National Guard Regulation 600-100, paragraph 2-7a, requires those applying for an initial appointment to be assigned "to an authorized position in a federally recognized unit."  NGB issued PPOM Number 10-033, dated 27 July 2010, which allows assignment of 2LTs to 125 percent of authorized strength.  This PPOM also stipulated the State may not exceed its overall end strength limit as established by NGB.

4.  Based on the available evidence, it appears the applicant continued to serve in the MOARNG in an enlisted status until such time as an authorized position was available within the established end strength limitation.

5.  Notwithstanding the favorable NGB advisory opinion, by law all military officer promotions require placement on a scroll and processing through Service channels to the Secretary of Defense.

6.  Since his Reserve promotion cannot precede his scroll confirmation, and it appears his initial appointment to 2LT was not Federally recognized until 19 September 2012 following his enlisted discharge, he would not have been eligible for promotion to 1LT earlier than 19 March 2014.  His records show he was promoted to 1LT with an effective date and DOR of 25 April 2014.  Additionally, officer promotion scrolling actions are not within the purview of this Board.

7.  In view of the foregoing evidence, there is an insufficient basis for granting the requested relief.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x____  ___x____  ___x____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _  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)                                         AR20140016569



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ABCMR Record of Proceedings (cont)                                         AR20140016569



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