IN THE CASE OF:	  

		BOARD DATE:	       29 SEPTEMBER 2009

		DOCKET NUMBER:  AR20090007461 


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 permanent Federal recognition initial appointment date be adjusted from 25 October 2007 to 8 September 2007 and that he be promoted to first lieutenant (1LT) on 8 March 2009 in accordance with National Guard Bureau (NGB) memorandum, dated 19 August 2008, subject:  Reduction in the Time in Grade (TIG) Requirement for Promotion of Reserve Component Officers to First Lieutenant.

2.  The applicant states that he appeared before the Federal recognition board (FRB) on 31 August 2007.  He graduated from the Officer Candidate School (OCS) and was appointed on 8 September 2007.  He states that due to a misinterpretation of the FRB action held on 31 August 2007, another FRB was held on 25 October 2007 which changed his initial appointment date to 25 October 2007.  He describes the events involving the two FRBs conducted on 31 August 2007 and 25 October 2007.

3.  The applicant provides the following documents in support of his application:  Special Orders Number 72 AR, dated 18 March 2008; Special Orders Number 145 AR, dated 10 June 2008; Delaware Army National Guard (DEARNG) Orders 299-501, dated 26 October 2007; two NGB Forms 89 (Proceedings of a Federal Recognition Examining Board); a 193rd Regiment Regional Training Institute OCS completion certificate; two NGB Forms 337 (Oaths of Office); and a DA Form 1059 (Service School Academic Evaluation Report).



CONSIDERATION OF EVIDENCE:

1.  On 31 August 2007, an FRB was held by the DEARNG to determine if the applicant was qualified to be awarded Federal recognition.  The proceedings indicated that he met the physical, moral character, and general qualifications required for Federal recognition.

2.  The applicant successfully completed OCS on 8 September 2007.

3.  On 8 September 2007, the applicant executed the oaths of office as a second lieutenant (2LT) in the DEARNG and he was granted temporary Federal recognition.

4.  On 25 October 2007, another FRB was held by the DEARNG to determine if the applicant was qualified for Federal recognition.

5.  On 25 October 2007, the applicant again executed the oaths of office as a 2LT in the DEARNG and was again granted temporary Federal recognition.

6.  Orders published by the DEARNG on 26 October 2007 appointed the applicant as a 2LT in the DEARNG with a date of rank of 8 September 2007.

7.  On 18 March 2008, the applicant successfully completed the Signal Basic Officer Leadership Course.

8.  NGB Special Orders Number 72 AR, dated 18 March 2008, announced the extension of Federal recognition in the Army National Guard for the purpose of initial appointment in the grade of 2LT effective 25 October 2007.

9.  In the processing of this case, a staff advisory opinion was obtained from the Personnel Division, NGB.  This office recommended approval of the applicant's request to adjust his initial appointment effective date to 8 September 2007.  The opinion also recommended that the applicant be promoted to 1LT effective 8 March 2009 with all back pay and allowances.  The advisory opinion referenced the following regulatory cites and memoranda:  National Guard Regulation 600-100, chapter 2, paragraph 2-2, and chapter 10, paragraph        10-15b; NGB Personnel Policy Memorandum 08-035, dated 25 November 2008; and Department of the Army Office of the Assistant Secretary of the Army for Manpower and Reserve Affairs memorandum, dated 19 August 2008, which states, in pertinent part, "This memorandum establishes Department of the Army policy authorizing Reserve Component second lieutenants on the Reserve Active Status list to be promoted with a minimum of 18 months of TIG and completion of the basic officer leadership course, if otherwise qualified."

10.  A copy of the advisory opinion was provided to the applicant in order to allow him to submit comments; however, he did not respond within the allotted time frame.

11.  National Guard Regulation 600-100 provides procedures for processing all applications for Federal recognition.  Paragraph 2-1 states that commissioned officers of the Army National Guard 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 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 the 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.  National Guard Regulation 600-100, paragraph 10-15b, states that temporary Federal recognition may be granted by a FRB to those eligible when the board finds that the member has successfully passed the examination prescribed herein, has subscribed to the oaths 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.  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 2-2 of Army Regulation 135-155 states, in pertinent part, 2LTs must complete a resident officer basic course to be eligible for promotion to 1LT.

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 2LT.  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 FRB.

3.  Based on the recommendations of the second DEARNG FRB, 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 permanent Federal recognition effective 8 September 2007.

5.  Based on applicable law and regulation, the applicant is entitled to have Special Orders Number 72 AR amended to show the effective date of permanent Federal recognition in the grade of 2LT as 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 18 March 2008 and met the TIG requirement for promotion to the grade of 1LT, the applicant is entitled to be awarded permanent Federal recognition for promotion to 1LT effective date 8 March 2009.

BOARD VOTE:

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

	a.  amending NGB Special Orders Number 72 AR, dated 18 March 2008, to show that the applicant was extended Federal recognition for initial appointment effective 8 September 2007;

	b.  amending his records to show he was promoted to 1LT effective 8 March 2009 and to show he was extended Federal recognition effective 8 March 2009 in the grade of 1LT; and
 
	c.  paying the applicant any due pay and allowances as a result of these corrections.



      _______________XXX__________
       	     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)                                         AR20090007461



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ABCMR Record of Proceedings (cont)                                         AR20090007461



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