IN THE CASE OF:	  

		BOARD DATE:	        22 July 2008


		DOCKET NUMBER:  AR20080010002 


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 records be corrected to show that he received permanent Federal recognition for initial appointment as a second lieutenant in the Pennsylvania Army National Guard National (PAARNG) on 
29 September 2005.    

2.  The applicant states, in effect, that he never received initial Federal Recognition when he was appointed a second lieutenant on 29 September 2005. He contends that new Federal Recognition proceedings had to be completed and he was required to swear in again as a second lieutenant on 14 January 2008.  He was granted permanent Federal Recognition with an effective date of rank of 14 January 2008.  He points out that he has lost commissioned officer time and time-in-grade between 29 September 2005 and 14 January 2008, a period greater than 2 years and 3 months.  He also states that this error has cost him his promotion to first lieutenant effective 29 September 2007.

3.  The applicant provides two Oaths of Office; two orders for appointment to second lieutenant; two Proceedings of a Federal Recognition Examining Board; National Guard Bureau Special Orders Number 129 AR, dated 20 May 2008; a DA Form 1059 (Service School Academic Evaluation Report); two Officer Evaluation Reports; a DA Form 200 (Transmittal Record), dated 9 June 2008; a memorandum, dated 3 June 2008; and promotion orders to first lieutenant.   




CONSIDERATION OF EVIDENCE:

1.  On 12 September 2005, a Federal Recognition Board was held by the PAARNG to determine if the applicant was qualified to be awarded Federal recognition as a second lieutenant.  The proceedings indicated that the applicant was satisfactory in his physical qualifications, moral character, and general qualifications.  

2.  On 29 September 2005, the applicant executed an Oaths of Office as a second lieutenant in the PAARNG and was granted temporary Federal recognition.

3.  There is no evidence that the applicant received permanent Federal recognition as a second lieutenant from the National Guard Bureau within the six month period required by National Guard/Army regulations.  As a result, his temporary Federal recognition expired.

4.  The applicant completed the Army Medical Department (AMEDD) Officer Basic Course on 10 June 2006.

5.  The applicant was promoted to first lieutenant effective 29 September 2007. 

6.  On 14 January 2008, a Federal Recognition Board was held by the PAARNG to determine if the applicant was qualified to be awarded Federal recognition as a second lieutenant.  The proceedings indicated that the applicant was satisfactory in his physical qualifications, moral character, and general qualifications.  

7.  On 14 January 2008, the applicant executed a second Oaths of Office as a second lieutenant in the PAARNG and was awarded temporary Federal Recognition.

8.  National Guard Bureau Special Orders Number 129 AR, dated 20 May 2008, show the applicant was granted Federal recognition for initial appointment in the grade of second lieutenant effective 10 January 2008.

9.  In the processing of this case, a staff advisory opinion was obtained from the National Guard Bureau.  That office recommends approval of the applicant’s request (to adjust his initial appointment effective 29 September 2005).  The National Guard Bureau further recommends that the applicant be promoted to first lieutenant effective 29 September 2007 and that he receive all back pay and allowances as a result of this adjustment.

10.  On 24 June 2008, a copy of the advisory opinion was forwarded to the applicant for comment and possible rebuttal.  On 1 July 2008, the applicant concurred with the advisory opinion.

11.  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.  

12.  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. 

13.  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 six 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.

14.  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.

15.  Paragraph 2-1 of Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) states, in pertinent part, that an officer in the grade of second lieutenant will be considered for promotion without review by a selection board.  The officer's records will be screened to determine eligibility for promotion to the next higher grade far enough in advance to permit promotion on the date the promotion service is completed in compliance with table 2-1 or table 2-3 of this regulation.

16.  Table 2-1 of Army Regulation 135-155 states that the minimum time in grade as a second lieutenant for promotion to first lieutenant is 2 years.

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

DISCUSSION AND CONCLUSIONS:

1.  Records show that the applicant was granted temporary Federal recognition effective 29 September 2005 upon his initial appointment in the PAARNG as a second lieutenant.  At that time, his Federal recognition packet and allied documents should have been forwarded to the Adjutant General of the State of Pennsylvania 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 National Guard Bureau issued orders granting Federal recognition for initial appointment in the grade of second lieutenant effective 
10 January 2008.

3.  From the foregoing, it is clear that an administrative error denied the applicant Federal recognition effective 29 September 2005.  

4.  Based on applicable law and regulation, the applicant is entitled to have National Guard Bureau Special Orders Number 129 AR, dated 20 May 2008, amended to show the effective date of permanent Federal recognition in the grade of second lieutenant is 29 September 2005.


5.  Additionally, based on the above correction and the fact that the applicant successfully completed the AMEDD Officer Basic Course on 10 June 2006 and met the time-in grade requirement for promotion to the grade of first lieutenant, the applicant is entitled to be awarded permanent Federal recognition for promotion to first lieutenant with the effective date 29 September 2007.

BOARD VOTE:

___xx___  __xx____  __xx____  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 Army National Guard records and Department of the Army records of the individual concerned be corrected by:

     a.  amending National Guard Bureau Special Orders Number 129 AR, dated 20 May 2008, to show that he was extended Federal recognition effective 
29 September 2005 in the grade of second lieutenant;

     b.  promoting the applicant to the grade of first lieutenant with an effective date and date of rank of 29 September 2007; and 

     c.  paying to him any and all back pay and allowances due as a result of these corrections.



      ________xxxx___________
       	   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)                                         AR20080010002



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ABCMR Record of Proceedings (cont)                                         AR20080010002



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