IN THE CASE OF:	  

		BOARD DATE:	        14 August 2008

		DOCKET NUMBER:  AR20080006549 


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 the date of his Federal Recognition be corrected to show he was granted Federal Recognition on 29 September 2005, with all back pay and allowances; and promotion to first lieutenant (1LT), with effective date and date of rank (DOR) of 14 December 2007, with all back pay and allowances. 

2.  The applicant states, in effect, that through no fault of his own, there was a delay in processing his initial Federal Recognition. 

3.  The applicant provides copies of his Oaths of Office, his NGB Forms 89 (Proceedings of a Federal Recognition Examining Board), his Service School Academic Report, his Federal Recognition order, and promotion orders.

CONSIDERATION OF EVIDENCE:

1.  The applicant is a second lieutenant (2LT) in the West Virginia Army National Guard (WVARNG). 

2.  The available record shows that on 29 September 2005 a Federal Recognition Examining Board (FREB) considered and accepted the applicant's application for appointment as a 2LT in the WVARNG and determined the applicant fully qualified for the position and grade.

3.  WVARNG Orders 273-611, appointed the applicant, as a 2LT in the Medical Services Corps (MS), in the WVARNG, effective 29 September 2005.  He signed his Oaths of Office the same day. 

4.  There is no evidence that the National Guard Bureau (NGB) awarded the applicant permanent Federal Recognition effective 29 September 2005 based on the results of the FREB.

5.  The applicant appeared before a second FREB on 1 February 2008 to determine his qualifications for Federal Recognition as a second lieutenant in the MS Corps.  The FREB determined the applicant to be fully qualified for appointment in the WVARNG in the grade of 2LT.    

6.  On 1 February 2008, the applicant took the Oaths of Office for the second time.  WVARNG Orders 032-601, dated 1 February 2008, appointed him in the WVARNG in the rank of 2LT, MS. 

7.  On 14 December 2007, the applicant completed the AMEDD Officer Basic Course. 

8.  National Guard Bureau (NGB) Federal Recognition Orders Number 73 AR, dated 19 March 2008, awarded the applicant permanent Federal Recognition for initial appointment to the grade of 2LT, effective 1 February 2008. 

9.  In processing this case, an advisory opinion was obtained from the Chief, Personnel Division, National Guard Bureau, recommending approval of the applicant's request to adjust his initial appointment date to 29 September 2005 based on governing regulations.  It also recommended that he be promoted to 1LT on 14 December 2007.  Since the applicant's initial appointment packet was never forwarded to the NGB for processing and he did not receive initial Federal Recognition until 1 February 2008, his promotion packet could not be processed. 

10.  On 22 May 2008, the applicant was provided a copy of the advisory opinion for comment and/or rebuttal.  To date, he has not responded.  

11.  NGR 600-100 (Commissioned Officers – 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.  

12.  NGR 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.

13.  NGR 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 an FRB 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 FRB should be convened to consider the request again and grant another new period of temporary Federal Recognition if warranted.

14.  NGR 600-100, paragraph 10-15b states that temporary Federal Recognition may be granted by an FRB 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 FRB 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.

15.  Title 32 U.S.C. §307 states:  To be eligible for Federal Recognition as an officer of the National Guard, a person must receive an appointment with a view to filling a vacancy in a federally recognized unit or organization of the National Guard; have the qualifications prescribed by the Secretary concerned for the grade, branch, position, and type of unit or organization involved; and pass an examination for physical, moral, and professional fitness.  It provides that Federal Recognition thus extended is effective from the date of appointment in the Army National Guard.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is entitled to correction of his records to show he was appointed in the WVARNG and extended Federal Recognition as a 2LT effective 29 September 2005, with all appropriate adjustment of pay and allowances.  Therefore, WVARNG Orders 032-601, dated 1 February 2008, the Oaths of Office, dated 1 February 2008; and Special Orders 73 AR, dated 19 March 2008, should be declared void and of no force or effect.

2.  The FRB recommended the applicant for appointment in the WVARNG in the rank of 2LT with an effective date and DOR of 29 September 2005.  Through no fault of the applicant, his temporary extension of Federal Recognition expired.  Upon submission of another appointment, another Oaths of Office was initiated and his DOR for 2LT became 1 February 2008, the date his second Oaths of Office was administered.  The administrative error in processing and granting the applicant permanent Federal Recognition upon his initial appointment and processing of his second appointment packet altered his DOR through no fault of the applicant, and he should not be penalized for this action.

3.  Based on the adjusted effective date and DOR to 2LT, the applicant should be promoted to 1LT, effective 14 December 2007, with all appropriate adjustment of pay and allowances.

4.  In view of the foregoing, the applicant's WVARNG and Department of the Army records should be corrected as recommended below.

BOARD VOTE:

__xxx___  __xxx___  __xxx___  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 State of GA and Department of the Army records of the individual concerned be corrected by:

	a.  voiding the applicant's Orders 032-601, dated 1 February 2008, showing an effective date of 1 February 2008; the Oaths of Office, dated 1 February 2008; and Special Orders 73 AR, dated 19 March 2008; 

	b.  by showing that the applicant was appointed in the WVARNG and extended Federal Recognition, as a 2LT, effective 29 September 2005, with all appropriate adjustment of pay and allowances; and

	c.  showing that he was promoted to 1LT with an effective date and DOR of 14 December 2007, with all appropriate adjustment of pay and allowances.




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      _______ _   _______   ___
       	   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)                                         AR20080006549





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ABCMR Record of Proceedings (cont)                                         AR20080006549



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