IN THE CASE OF:	  

	BOARD DATE:	  3 JUNE 2008

	DOCKET NUMBER:  AR20070013847 


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 in effect, that his National Guard Bureau (NGB) Special Orders Number 82 AR dated 5 April 2007, be amended to show he was initially granted Federal Recognition effective 22 September 2005 in the rank of second lieutenant instead of 29 March 2007.

2.  The applicant states, in effect, that due to no fault of his own his initial Federal Recognition packet was not submitted in a timely fashion or was lost in the process.  The Texas Army National Guard reported that the NGB never submitted the proper paperwork.

3.  The applicant provides a copy of Texas Military Forces, Army National Guard Adjutant General's Department Orders Number 350-1016 dated 16 December  
2005, DA Form 67-9 (Officer Evaluation Report), and a Diploma from the Officer Candidate School of the United States Army Infantry School dated 16 April 2005.

CONSIDERATION OF EVIDENCE:

1.  The Diploma from the Officer Candidate School of the United States Army Infantry School shows that the applicant successfully graduated and met the school requirement to be commissioned as a second lieutenant in the Army National Guard effective, 16 April 2005.

2.  On 16 September 2005, a Federal Recognition Board was held by the TXARNG to determine if the applicant was qualified to be awarded Federal Recognition.  The proceedings indicated that the applicant was satisfactory in his physical qualifications, moral character, general qualifications, and he was professionally qualified.

3.  The Texas Military Forces, Army National Guard Adjutant General's Department, issued Order Number 350-1016 dated 16 December 2005 for appointment of the applicant as a second lieutenant, effective 22 September 2005.

4.  The applicant accepted an appointment as a second lieutenant in the TXARNG and he executed an NGB Form 337 (Oaths of Office) as a Reserve Commissioned Officer in the TXARNG and was granted temporary Federal Recognition on 22 September 2005.  

5.  On 28 March 2007, a second Federal Recognition Board was held by the TXARNG to determine if the applicant was qualified to be awarded Federal Recognition.  The proceedings indicated that the applicant was satisfactory in his physical qualifications, moral character, general qualifications, and he was professionally qualified.  The applicant was granted initial appointment effective 29 March 2007.

6.  On 29 March 2007, the applicant executed a second NGB Form 337 as a second lieutenant in the TXARNG and was granted temporary Federal Recognition.

7.  NGB Special Orders Number 82 AR, dated 5 April 2007, awarded the extension of Federal Recognition for initial appointment in the Army National Guard in the rank of second lieutenant, effective 29 March 2007.

8.  In the processing of this case, an advisory opinion was obtained from the NGB.  The NGB recommends approval of the applicant's request to adjust his initial appointment date to 22 September 2005 and to promote the applicant to first lieutenant effective 22 September 2007, with all back pay and allowances as a result of the adjustment.  The recommendation was based on the Oaths of Office he signed upon graduation from the Army National Guard Officer Candidate School, which was 22 September 2005.  The applicant was provided a copy of the advisory opinion but did not respond.

9.  National Guard Regulation 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 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.

10.  National Guard Regulation 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 oaths 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.

11.  National Guard Regulation 600-100, 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 oaths 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant was granted temporary Federal Recognition effective 22 September 2005 upon his initial appointment in the TXARNG as a second lieutenant.  His Federal Recognition packet was either lost or delayed, which caused him to be considered by a second TXARNG Federal Recognition Board.  As a result, his Federal Recognition Packet resulted in the delay of his Federal Recognition as a second lieutenant until 29 March 2007 and he was branch transferred on 30 March 2007.

2.  In view of the forgoing, it is clear that the applicant should not be held responsible for the delay of his initial Federal Recognition packet.

3.  Based on applicable law and regulatory guidance, and in the interest of equity, the applicant is entitled to have NGB Special Orders Number 82 AR dated 5 April 2007 amended to show he was extended initial Federal Recognition in the rank of second lieutenant effective 22 September 2005 and promote the applicant to first lieutenant effective 22 September 2007.

BOARD VOTE:

____X___  ___X____  __X____  GRANT FULL RELIEF 

________  ________  ________  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 relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending NGB Special Orders Number 82 AR dated 5 April 2007 to show that he was extended Federal Recognition effective 22 September 2005 in the rank of second lieutenant and promote him to first lieutenant effective 22 September 2007.

2.  Additionally, Defense Finance and Accounting Service (DFAS) should audit the applicant's pay records and provide the applicant all pay and allowances due him based on the above corrections.



      _________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)                                         AR20070013847



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ABCMR Record of Proceedings (cont)                                         AR20070013847



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