DOCKET NUMBER:  AR20090001596 


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 that his National Guard Federal Recognition initial appointment, dated 18 December 2008, in the grade of second lieutenant be corrected to show that his Federal Recognition order and initial appointment date is effective 14 September 2006.  He also requests that his date of rank to first lieutenant be changed to 13 September 2008.

2.  The applicant states, in effect, that his initial appointment in the Maryland Army National Guard (MDARNG) was on 14 September 2006, but his Federal Recognition was not administratively granted until 2 October 2008.  He was mobilized and then deployed with his unit in support of Operation Iraqi Freedom from 8 September 2007 to 3 March 2008.  He states that the error was discovered on 23 July 2008 and a new Federal Recognition Board was held.  The Board granted him initial appointment in the Army National Guard effective 2 October 2008, two years after he was initially appointed in the MDARNG.  He states that this error has caused him to lose 2 years of creditable military service and negatively affected his date of rank to first lieutenant by 2 months.

3.  The applicant provides a copy of his selection by the Accession Board, dated 21 July 2006; two copies of National Guard Bureau (NGB) Forms 89 (Proceedings of a Federal Recognition Examining Board); an initial Oath of Office, dated 14 September 2006; an Oath of Office to first lieutenant, dated        2 October 2008; NGB Bureau Federal Recognition Orders Number 328 AR, dated 18 December 2008; and promotion orders.


CONSIDERATION OF EVIDENCE:

1.  On 14 September 2006, a Federal Recognition Board was held by the MDARNG 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.  On 14 September 2006, the applicant executed an Oath of Office as a second lieutenant in the MDARNG.  By regulation, he was granted a six month temporary Federal Recognition status.

3.  Headquarters, MDARNG Orders 260-022, dated 17 September 2006, appointed the applicant as a second lieutenant in the ARNG, in basic branch Medical Service Corps, with assignment to the 224th Medical Company, MDARNG.  

4.  There is no evidence that the applicant received permanent Federal Recognition as a second lieutenant from the NGB within the six month period required by National Guard/Army regulations.  

5.  On 2 October 2008, a second Federal Recognition Board was held by the MDARNG 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.  

6.  Headquarters, MDARNG Orders 276-119, dated 2 October 2008, appointed the applicant as a first lieutenant in the ARNG.  The orders were effective the same date as published. 

7.  On 2 October 2008, the applicant executed a second Oath of Office as a first lieutenant in the MDARNG and was granted temporary Federal Recognition.

8.  NGB Federal Recognition Orders Number 328 AR, dated 18 December 2008, awarded the applicant permanent Federal Recognition for initial appointment to the grade of first lieutenant, effective 2 October 2008.

9.  In the preparation of this case, an advisory opinion was obtained from the NGB, Personnel Division.  The advisory opinion, dated 9 March 2009, recommends that the applicant's initial date of Federal Recognition to second lieutenant be changed to 14 September 2006, the date he was first administered his Oath of Office.  Furthermore, the opinion recommends that the applicant's effective date of rank and Federal Recognition as a first lieutenant be changed to 13 September 2008 with all back pay and allowance paid to the applicant.    
10.  On 12 March 2009, the Army Review Boards Agency notified the applicant that he had received a favorable recommendation from the NGB and asked if he wanted to comment on that opinion.  The applicant did not respond within 30  days of notification.

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 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.  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 an 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 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 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 officer is favorably recommended, the state Adjutant General will endorse the packet to 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.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) states in pertinent part, that a qualified second lieutenant will not be promoted to first lieutenant before the date of completion of 2 years of promotion service.  The promotion eligibility date to first lieutenant is the date the second lieutenant meets the eligibility criteria for promotion to the next higher grade.  The time in grade requirements for promotion to first lieutenant is a minimum of 2 years in the lower grade to a maximum of 42 months in the lower grade.  Officers must meet all educational, physical fitness standards, weight standards, and be medically fit for retention in the Army Reserve.

DISCUSSION AND CONCLUSIONS:

1.  Records show that the applicant was granted temporary Federal Recognition, effective 14 September 2006, upon his initial appointment in the MDARNG 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 Maryland for endorsement to NGB for extension of permanent Federal Recognition.  Through no fault of the applicant, this action was not taken.

2.  After his mobilization and redeployment from supporting Operation Iraqi Freedom, a second Federal Recognition Board was held, on 2 October 2008, in the state of Maryland.  This board recommended that Federal Recognition should be granted to the applicant.  On 18 October 2008, the National Guard Bureau issued orders awarding the applicant his initial permanent Federal Recognition in the rank of first lieutenant effective 2 October 2008.

3.  From the foregoing, it is clear that an administrative error denied the applicant Federal Recognition as a second lieutenant effective 14 September 2006.  

4.  In view of the foregoing, it would be in the interest of justice to amend Federal Recognition Order Number 328 AR to show the effective date of permanent Federal Recognition in the grade of second lieutenant as 14 September 2006.  
5.  Based on the correction of the applicant's promotion to the grade of second lieutenant and his initial Federal Recognition appointment, the applicant is eligible for promotion to the grade of first lieutenant effective 13 September 2008. Therefore, the applicant should be awarded permanent Federal Recognition as a first lieutenant with an effective date of 13 September 2008.

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

	a.  amending Federal Recognition Orders Number 328 AR, dated 18 December 2008, to show that he was extended Federal Recognition effective 14 September 2006 in the grade of second lieutenant;  

	b.  amending Headquarters, MDARNG Order 279-119, dated 2 October 2008, to show the applicant's effective date is 13 September 2008 to the grade of first lieutenant; and

	c.  showing he was granted Federal Recognition in the grade of first lieutenant effective 13 September 2008

2.  The Board further recommends that he be paid any monies due as a result of this correction.




      _______ _   __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)                                         AR20090001596





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ABCMR Record of Proceedings (cont)                                         AR20090001596



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