IN THE CASE OF:	  

		BOARD DATE:	        04 SEPTEMBER 2008

		DOCKET NUMBER:  AR20070015760 


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 Federal Recognition Order, dated 4 January 2007 be corrected to show his effective date of federal recognition (initial appointment) was 24 February 2005 in the rank of first lieutenant.  He also requests reinstatement of his previously submitted 
23 August 2006 captain position vacancy promotion packet.

2.  The applicant states he was initially appointed as a first lieutenant on 24 February 2005 in the Colorado Army National Guard (COARNG) and tendered temporary Federal Recognition.  He did not receive permanent Federal Recognition within 6 months due to administrative errors.

3.  The applicant provides in support of his application, a copy of his 
NGB Form 89 (Proceedings of a Federal Recognition Examining Board); a copy of his initial appointment packet; a copy of his initial captain promotion packet; and a copy of the Federal Recognition order that established 29 September 2006 as his initial appointment date.

CONSIDERATION OF EVIDENCE:

1.  On 16 February 2005, a Federal Recognition Board was held by the COARNG 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 and general qualifications.  

2.  There is no evidence that the applicant was awarded permanent Federal Recognition by the National Guard Bureau based on the results of the 16 February 2005 COARNG Federal Recognition Board.

3.  On 24 February 2005, the applicant executed an Oath of Office as a first lieutenant in the COARNG and was granted temporary Federal Recognition.

4.  There is no evidence that the applicant received permanent Federal Recognition as a first lieutenant from the National Guard Bureau within the 
6-month period required by National Guard/Army regulations.  

5.  On 15 August 2006, a second Federal Recognition Board was held by the COARNG to determine if the applicant was qualified to be awarded Federal Recognition in the rank of captain.  The proceedings indicated that the applicant was satisfactory in his physical qualifications, moral character and general qualifications.  

6.  On 22 August 2006, the applicant was recommended for promotion to captain in the COARNG.  In his recommendation, commanding officer stated that the applicant clearly demonstrated the required fitness for the responsibilities and duties for the position, grade and specialty skill identifier.

7.  The applicant was awarded temporary Federal Recognition in the rank of captain on 23 August 2006.

8.  Enclosed with a memorandum dated 28 September 2006, the applicant's promotion packet was returned without action by the Supervisor, Federal Recognition Section, National Guard Bureau, who stated that there was no evidence that the applicant had been initially appointed.

9.  On 29 September 2006, the applicant executed an Oath of Office as a first lieutenant in the COARNG and was granted temporary Federal Recognition.

10.  Orders 278-020 dated 5 October 2006 were published by the COARNG appointing the applicant to the rank of first lieutenant effective 29 September 2006.

11.  National Guard Bureau Federal Recognition Orders Number 2 AR dated 4 January 2007, awarded the applicant permanent Federal Recognition for initial appointment to the grade of first lieutenant, effective 29 September 2006.



12.  During the processing of the case an advisory opinion was obtained from the Chief, Personnel Division, National Guard Bureau, who recommended approval of the applicant's request for adjustment of his initial appointment date to 24 February 2005.  The Chief, Personnel Division's recommendation is based on the first approved State Proceedings of a Federal Recognition Examining Board and the applicant's signed Oaths of Office dated 24 February 2005.  The Chief, Personnel Division further recommended, in regard the applicant's request to reinstate his previously submitted 23 August 2006 captain position vacancy promotion packet, that the State resubmit the packet if The Adjutant General (TAG) approves the recommendation.  The Chief, Personnel Division stated that if the request is approved, the promotion effective date and the date of rank will not be backdated to 23 August 2006, as the effective date and date of rank will be the date that the Secretary of Defense approved the position vacancy promotion list.  The Chief, Personnel Division goes to explain the applicant's recourse of action if his request for adjustment of his initial appointment date is approved by this Board.

13.  A copy of the advisory opinion was forwarded to the applicant on 6 November 2007.  To date, there has been no response from the applicant regarding the advisory opinion.

14.  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 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.  

15.  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 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. 

16.  National Guard Regulation 600-100, 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 6 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.

17.  National Guard Regulation 600-100, paragraph 10-15b states that temporary Federal Recognition may be granted by an 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.

18.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), Table 2-1 states that the minimum time in grade as a first lieutenant for promotion to captain is 5 years.

19.  Table 2-2 of Army Regulation 135-155 states, in pertinent part, that first lieutenants must complete a resident officer basic course to be eligible for promotion to captain.

DISCUSSION AND CONCLUSIONS:

1.  Records show the applicant was granted temporary Federal Recognition effective 16 February 2005 upon his initial appointment in the COARNG as a first lieutenant.  At that time, his Federal Recognition packet and allied documents should have been forwarded to the Adjutant General of the State of Michigan for endorsement to the National Guard Bureau for extension of permanent Federal Recognition.  Through no fault of the applicant, this action was not taken.






2.  Subsequently, the applicant's Federal Recognition packet was considered by another COARNG Federal Recognition Board.  

3.  Based on the recommendations of the second COARNG Federal Recognition Board, the National Guard Bureau issued orders awarding the applicant permanent Federal Recognition effective 29 September 2006.

4.  It is clear that an administrative error denied the applicant Federal Recognition effective 24 February 2005.  

5.  Based on applicable law and regulation, the applicant is entitled to have Federal Recognition Order Number 2 AR amended to show the effective date of permanent Federal Recognition in the grade of first lieutenant is 24 February 2005. 

6.  Upon correction of the date of Federal Recognition for initial appointment as a first lieutenant, the applicant's eligibility date for promotion to captain should be adjusted accordingly.

7.  In regard to the applicant's request for reinstatement of his 23 August 2006 previously submitted captain promotion vacancy packet, unit vacancy promotions are a snapshot in time and there are no provisions for retroactive promotion vacancy considerations.   Accordingly, it would be appropriate to deny this portion of his request.

8.  In view of the foregoing, it would now be in the interest of justice to correct the applicant's records as recommended below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__XXX __  __XXX__  __XXX__   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 amending Federal Recognition Order Number 2 AR, dated 4 January 2007, to show that he was awarded permanent Federal Recognition for initial appointment as a first lieutenant effective 24 February 2005 and that his records be reviewed to determine if he met all requirements and was eligible for promotion consideration to captain.

2.  The Board further determined that 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 reinstatement of his previously submitted 23 August 2006 captain position vacancy promotion packet.




      ___        XXX                ___
                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)                                         AR20070015760



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ABCMR Record of Proceedings (cont)                                         AR20070015760



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