IN THE CASE OF:	  

		BOARD DATE:	        21 JULY 2009

		DOCKET NUMBER:  AR20090007557 


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 correction of his military records to show his date of appointment as a second lieutenant as 8 September 2007.

2.  The applicant states that he appeared before a Federal Recognition Board (FRB) on 31 August 2007.  He graduated from Officer Candidate School (OCS) on 8 September 2007 and was immediately appointed as a second lieutenant.  Due to a misinterpretation of the FRB action on 31 August 2007, another FRB was convened on 25 October 2007.  This resulted in a change of his date of appointment to 25 October 2007.  The validity of using an Active Guard Reserve (AGR) Title 32 officer for the 31 August 2007 FRB was questioned.  This resulted in the convening of another FRB on 25 October 2007.  Instructions were given to add a comment stating that the applicant's effective date for appointment, as provided by National Guard Regulation 600-100, was to be 8 September 2007.  When the packet was received at the National Guard Bureau (NGB) the added comment was deleted with the explanation that an effective date for appointment could not be earlier than the FRB.

3.  The applicant provides, in support of his application, copies of his OCS completion certificate; NGB 89 (Proceedings of a Federal Recognition Examining Board), dated 31 August 2007 and 25 October 2007; NGB Special Orders Number 73 AR, dated 19 March 2008; State of Delaware, Delaware Army National Guard (DEARNG), Orders 299-505, dated 26 October 2007; State of Delaware, DEARNG, Orders 022-504, dated 22 January 2008; and two NGB 337's (Oaths of Office), dated 8 September 2007 and 25 October 2007.

CONSIDERATION OF EVIDENCE:

1.  At the time of his application, the applicant was serving as a second lieutenant in the DEARNG.

2.  An NGB 89, dated 31 August 2007, shows the applicant was found qualified and recommended for Federal recognition.  He was placed against paragraph 106, line 01, for duty as a platoon leader.

3.  On 8 September 2007, the applicant completed the prescribed course of instruction for commissioning as a second lieutenant.

4.  On 8 September 2007, the applicant signed an NGB 337, swearing his oath of office as a second lieutenant.

5.  An NGB 89, dated 25 October 2007, shows the applicant was found qualified and recommended for Federal recognition.  He was placed against paragraph 106, line 01, for duty as a platoon leader.  The proceeding includes an added paragraph stating, "The applicant [sic] effective date for appointment as provided by NGR 600-100 is 8 Sep 2007."

6.  On 25 October 2007, the applicant signed an NGB 337, swearing his oath of office as a second lieutenant.

7.  Orders 299-505, dated 26 October 2007, appointed the applicant as a second lieutenant effective and with a date of rank of 8 September 2007.  

8.  Orders 022-504, dated 22 January 2008, amended Orders 299-505 to change the applicant's effective and date of rank to 25 October 2007.

9.  NGB Special Orders Number 73 AR, dated 19 March 2008, announced the extension of Federal recognition in the Army National Guard to the applicant for the purpose of initial appointment as a second lieutenant with a date of rank of
25 October 2007.

10.  In the processing of this case, an advisory opinion was obtained from the NGB, Chief, Personnel Division, Arlington, Virginia.  The opinion stated that in accordance with National Guard Regulation 600-100, chapter 2, paragraph 2-2, the effective date of Federal recognition for initial appointment is the date on 


which the commissioned officer executes the Oaths of Office in the State.  Also, paragraph 2-3a states that temporary Federal recognition upon 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 Army National Guard of a State and found to be qualified 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.  Should the initial period of temporary Federal recognition expire due to administrative processing delays through no fault of the applicant, a subsequent FRB should be convened to consider the request again and grant another new period of temporary Federal recognition, if warranted.  National Guard Regulation 600-100, chapter 10, 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 Army National Guard.  

11.  The opinion also provided that in accordance with the Department of the Army Office of the Assistant Secretary for Manpower and Reserve Affairs Memorandum, dated 19 August 2008, Part Two, Reserve Component second lieutenants on the Reserve Active-Status List would be promoted with a minimum of 18 months time-in-grade and completion of the Basic Officer Leadership course, if otherwise qualified.  The opinion recommended approval of the applicant's request. 

12.  On 6 May 2009, a copy of the advisory opinion was sent to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  However, no response was received.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his date of rank and effective date for second lieutenant should be changed to 8 September 2007.

2.  The evidence clearly shows that the applicant was recommended for Federal recognition and met the requirements effective 8 September 2007.  Through no fault of his own, his appointment was reconsidered by a subsequent FRB 


resulting in an adjusted Federal recognition date of 25 October 2007.  As a matter of equity, his original date of rank and effective date should be restored with payment of any back pay and allowances that may be due.

3.  In view of the above, the applicant’s records should be corrected to show that he was appointed in the DEARNG and as a Reserve of the Army as a second lieutenant with a date of rank of 8 September 2007 and that he was granted Federal recognition on this date.  

4.  The advisory opinion mentioned the 18-month time-in-grade requirement for promotion to first lieutenant; however, it did not make a recommendation concerning the applicant's eligibility for promotion to first lieutenant as of that date (i.e., 8 March 2009).  However, based on this correction, the applicant's records should be reviewed to determine his eligibility for promotion to first lieutenant.  If he is found to have been qualified for promotion to first lieutenant as of 8 March 2009, his records should be further corrected to show he was thus promoted and granted Federal recognition as a first lieutenant as of that date.

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:

   a.  amending NGB Special Orders Number 73 AR, dated 19 March 2008, to show that he was extended Federal recognition in the Army National Guard as a second lieutenant, effective 8 September 2007; and
   
   b.  auditing his records and paying him any monies due him as a result of this correction.

2.  Furthermore, based on this correction, the applicant's records should be reviewed to determine if he was eligible for promotion to first lieutenant at the  18-month time-in-grade point and, if found fully qualified, that he be promoted with the same date of rank and effective date and Federal recognition date as would have occurred had this correction not been necessary.



      _________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)                                         AR20090007557



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ABCMR Record of Proceedings (cont)                                         AR20090007557



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