IN THE CASE OF:	  

		BOARD DATE:	  5 November 2009

		DOCKET NUMBER:  AR20090004569 


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 first lieutenant in the Virginia Army National Guard National (VAARNG) on 
27 February 2008.  He further requests that his date of rank (DOR) for captain be adjusted to 21 July 2008.

2.  The applicant states, in effect, that his initial appointment in the VAARNG was not conducted or submitted until discovery of error.  He contends that his promotion to captain failed to be federally recognized due to lack of initial recognition and that his promotion has been unnecessarily delayed. 

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty); a memorandum for assignment letter for Individual Ready Reserve (IRR) officer; an oaths of office; and promotion orders in support of his application. 

CONSIDERATION OF EVIDENCE:

1.  Having prior enlisted service in the VAARNG, the applicant was appointed a Reserve Commissioned Officer in the rank of second lieutenant on 27 July 2003.  His DD Form 214 shows he entered active duty in the Regular Army on 27 July 2003, that he served as a transportation officer in Kuwait/Iraq from 22 January 2005 to 1 July 2006, and that he was honorably discharged on 11 January 2007 in the rank of first lieutenant.

2.  On 27 February 2008, the applicant executed the oaths of office in the grade of first lieutenant in the VAARNG and was granted temporary Federal recognition.  VAARNG orders show he was appointed in the ARNG in the rank of first lieutenant effective 27 February 2008.

3.  There is no evidence that the applicant received permanent Federal recognition as a first lieutenant from the NGB within the 6-month period required by Army National Guard regulations.  As a result, his temporary Federal recognition expired.

4.  VAARNG orders, dated 22 July 2008, show the applicant was promoted to captain effective 21 July 2008.  These orders were revoked on 21 November 2008.  

5.  On 23 October 2008, a Federal recognition Board was held by the VAARNG to determine if the applicant was qualified to be awarded Federal recognition as a first lieutenant.  The proceedings indicated that the applicant was satisfactory in his physical qualifications, moral character, and general qualifications.  VAARNG orders show he was appointed in the ARNG in the rank of first lieutenant effective 23 October 2008.

6.  Departments of the Army and the Air Force, National Guard Bureau (NGB), Special Orders Number 13 AR, dated 15 January 2009, show the applicant was granted Federal recognition for initial appointment as a first lieutenant effective 
23 October 2008.   

7.  VAARNG orders, dated 15 May 2009, show the applicant was promoted to captain effective 15 May 2009. 

8.  Departments of the Army and the Air Force, NGB, Special Orders Number 129 AR, dated 29 May 2009, show the applicant was granted Federal recognition for promotion to captain effective 26 May 2009.   

9.  In the processing of this case, a staff advisory opinion was obtained from the Personnel Division, NGB.  That office recommends disapproval of the applicant’s request to adjust his initial appointment date to 27 February 2008 and to adjust his DOR and effective date to captain to 21 July 2008.  The recommendation is based on the 5 August 2009 email from the VAARNG.  Due to a break in service, it was determined that the applicant was not eligible for promotion.  The applicant was required to be on the Reserve Active Status Lit (RASL) for a period of 365 days from date of appointment into the VAARNG.  

10.  The advisory opinion points out that the applicant was discharged from the Active Army on 11 January 2007, that on 27 February 2008 he signed the oaths of office into the VAARNG as a first lieutenant, and that the NGB, Personnel Division was unable to process his appointment and informed VAARNG that they would have to board him again for appointment.  The applicant was subsequently boarded and initially appointed as a first lieutenant effective 23 October 2008.   

11.  The email, dated 5 August 2009 from the VAARNG states, in pertinent part, that the applicant was discharged from the Active Army on 11 January 2007 and was not transferred to the U. S. Army Reserve (USAR) as he believed.  The original oath the applicant signed on 27 February 2008 was completed based on the thought he was in the USAR but when it was submitted to the NGB they returned it stating they needed a release from the USAR before they could process it.  After the VAARNG contacted the USAR for a release, they found out that the applicant was not in the USAR and to bring him into the VAARNG they needed to board him as a new appointment.  

12.  The email states that any officer who is initially appointed to a National Guard unit must stay on the RASL for a period of 365 days prior to submitting a promotion packet regardless if they are within the zone of consideration for a Department of the Army board.  Due to the applicant's break in service he was not eligible for any promotion (unit vacancy or Department of the Army) because he was required to be on the RASL for a period of 365 days from the date of appointment in the VAARNG.  The email also states that due to the fact that the applicant was discharged completely out of the military in January 2007 but believed he was discharged to the USAR caused a delay in obtaining supporting documentation to prove his claim of being in the USAR.  Had it been known in February 2008 that the applicant was not in the USAR would have meant a quicker turn around on his initial appointment into the VAARNG.  The email further states that an email from the Human Resources Command states the applicant is being removed from the Fiscal Year 2009 Captain APL Board which means his Federal recognition to captain will be withdrawn and he will be reduced back to first lieutenant and will be required to go before the next captain Department of the Army board.            

13.  A copy of the advisory opinion was forwarded to the applicant for comment and possible rebuttal.  On 25 August 2009, the applicant responded.  In summary he states that his "break in service" is a result of him not being placed in the IRR following his discharge from active duty.  As he understands it, the IRR is not an option for an officer with an 8-year contract and he is unaware as to why he was not placed in the IRR.  He began drilling in March 2008 and his Federal recognition did not occur until his promotion packet was rejected due to a lack of Federal recognition.  He contends that 8 months after his initial entry into the VAARNG he was granted Federal recognition only because the promotion packet brought attention to the issue.  He indicates that he held the rank of first lieutenant for 18 months on active duty and for 15 months while in the VAARNG.  He believes he should have been granted Federal recognition in a more timely manner.  

14.  National Guard Regulation 600-100 provides procedures for processing all applications for Federal recognition.  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.  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 a new period of temporary Federal recognition if warranted.

15.  Paragraph 5a of Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers other than General Officers) 5a states that to be eligible for consideration for promotion to the next higher grade, an Army National Guard or USAR officer must have continuously performed service on either the RASL or the ADL (or a combination of both) during the 1-year period ending on the convening date of the promotion board, and must meet time in grade requirements.  

DISCUSSION AND CONCLUSIONS:

1.  Records show that the applicant was granted temporary Federal recognition effective 27 February 2008 upon his initial appointment in the VAARNG 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 Virginia for endorsement to the NGB for extension of permanent Federal recognition.  Through no fault of the applicant, this action was delayed.

2.  Subsequently, the NGB issued orders extending Federal recognition for initial appointment in the grade of first lieutenant effective 23 October 2008.
3.  From the foregoing, it is clear that an administrative error denied the applicant Federal recognition effective 27 February 2008.

4.  Notwithstanding the NGB advisory opinion, based on applicable law and regulation, the applicant is entitled to have NGB Special Orders Number 13 AR, dated 15 January 2009, amended to show the effective date of permanent Federal recognition in the grade of first lieutenant is 27 February 2008.

5.  Additionally, based on the above correction, records will show the applicant was on the RASL for 365 days as of 27 February 2009; therefore, the promotion to captain effective 26 May 2009 and Federal recognition is correct as currently constituted.  If Federal recognition for captain has been withdrawn, then it would be appropriate for the NGB to reinstate Federal recognition for promotion to captain effective 26 May 2009.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

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

	a.  amending NGB Special Orders Number 13 AR, dated 15 January 2009, to show that he was extended Federal recognition effective 27 February 2008 in the grade of first lieutenant;

	b.  if Federal recognition for captain has been withdrawn, reinstate Federal recognition for promotion to captain effective 26 May 2009; and 

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

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 adjusting his DOR for captain to 21 July 2008.




      _______ _  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)                                         AR20090004569





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ABCMR Record of Proceedings (cont)                                         AR20090004569



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