IN THE CASE OF:	  

		BOARD DATE:	  15 October 2009

		DOCKET NUMBER:  AR20090007082 


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 the initial date of his appointment as a second lieutenant be changed from 25 October 2007 to 8 September 2007 and that he be  promoted to first lieutenant effective 8 March 2009.

2.  The applicant states he appeared before the Federal Recognition Board on 
31 August 2007 and graduated from Officer Candidate School and was appointed a second lieutenant on 8 September 2007.  He states that due to a misinterpretation, another Federal Recognition Board was held on 25 October 2007 and he was again appointed on 25 October 2007.

3.  The applicant provides, in support of his application, copies of his Officer Candidate School completion certificate; a National Guard Bureau (NGB)          89 (Proceeding of a Federal Recognition Examining Board), dated 31 August 2007; his NGB 337 (Oaths of Office), dated 8 September 2007; an NGB 89, dated 25 October 2007; his NGB Form 337, dated 25 October 2007; NGB Special Orders Number 73 AR, dated 19 March 2008, his DA Form 1059 (Service School Academic Evaluation Report), dated 9 April 2008: Delaware Army National Guard (DEARNG) Orders 299-504, dated 26 October 2007; and DEARNG Orders 022-507, dated 22 January 2008.

CONSIDERATION OF EVIDENCE:

1.  On 31 August 2007, a Federal Recognition Board was held by the DEARNG 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 8 September 2007, the applicant graduated from Officer Candidate School, executed the oaths of office as a second lieutenant in the DEARNG, and was granted temporary Federal recognition.

3.  On 25 October 2007, a second Federal Recognition Board was held by the DEARNG 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.

4.  On 25 October 2007, the applicant again executed the oaths of office as a second lieutenant in the DEARNG and was granted temporary Federal recognition.

5.  NGB Orders 299-504, dated 26 October 2007, appointed the applicant a second lieutenant in the DEARNG effective 8 September 2007 with a date of rank (DOR) of 8 September 2007.

6.  NGB Orders 022-507, dated 22 January 2008, amended NGB Orders 299-504, dated 26 October 2007 to show the applicant's DOR as 25 October 2007 and his effective date of appointment as 25 October 2007.

7.  NGB Special Orders Number 73 AR, dated 19 March 2008, awarded the applicant permanent Federal recognition for initial appointment to the grade of second lieutenant effective 25 October 2007.

8.  A DA Form 1059, dated 9 April 2008, shows that the applicant successfully completed the Signal Basic Officer Leader Course on 9 April 2008.

9.  In the processing of this case an advisory opinion, undated, was provided by the Chief, Personnel Division, NGB.  The NGB recommended approval of the applicant's request to adjust his initial appointment date to 8 September 2007, to promote him to first lieutenant effective 8 March 2009, and that he receive any back pay and allowances due as a result of this correction.  The applicant was provided a copy of this opinion and given 30 days to submit matters in rebuttal; no response to this opinion was received from the applicant.



10.  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.

11.  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.

12.  National Guard Regulation 600-100, paragraph 2-12, 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.

13.  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.

14.  Paragraph 2-1 of Army Regulation 135-155 (Army National Guard and U.S. Army Reserve 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.

15.  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.

16.  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.

17.  Department of the Army (DA), Office of the Assistant Secretary of the Army for Manpower and Reserve Affairs, memorandum, dated 19 August 2008, subject:  Reduction in the Time in Grade Requirement for Promotion of Reserve Component Officers to First Lieutenant, and National Guard Bureau Policy Memorandum Number 08035, dated 25 November 2008, established the DA policy authorizing Reserve Component second lieutenants to be promoted with a minimum of 18 months' time in grade and completion of the Basic Officer Leadership Course.  The effective date of promotion will not precede 19 August 2008.

DISCUSSION AND CONCLUSIONS:

1.  Records show that the applicant was granted temporary Federal recognition effective 8 September 2007 upon his initial appointment in the DEARNG 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 Delaware for endorsement to the NGB 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 DEARNG Federal Recognition Board on 25 October 2007.

3.  Based on the recommendations of the second DEARNG Federal Recognition Board, the NGB issued orders awarding the applicant permanent Federal recognition effective 25 October 2007.

4.  From the foregoing, it is clear that an administrative error denied the applicant Federal recognition effective 8 September 2007.

5.  Based on applicable law and regulation, the applicant is entitled to have NGB Special Orders Number 73 AR, dated 19 March 2008, amended to show the effective date of his permanent Federal recognition in the grade of second lieutenant is 8 September 2007.

6.  Additionally, based on the above correction and the fact that the applicant successfully completed the Signal Basic Officer Leader Course on 9 April 2008 and met the time-in-grade requirement for promotion to the grade of first lieutenant, the applicant is entitled to be promoted to first lieutenant and be awarded permanent Federal recognition for promotion to first lieutenant with the effective date of 8 March 2009.

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 the state Army National Guard Records and the Department of the Army records of the individual concerned be corrected by amending NGB Special Orders Number 73 AR, dated 19 March 2008, to show that he was extended Federal recognition effective 8 September 2007 in the grade of second lieutenant.

2.  The Board further recommends that the applicant be promoted to the grade of first lieutenant and granted permanent Federal recognition with an effective date and date of rank of 8 March 2009.



3.  Additionally, the Defense Finance and Accounting Service should audit the applicant's pay records and provide the applicant any pay and allowances due him based on the above corrections.



      _______ _   _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)                                         AR20090007082





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ABCMR Record of Proceedings (cont)                                         AR20090007082



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