IN THE CASE OF:	

		BOARD DATE:	4 August 2009  

		DOCKET NUMBER:  AR20090007567 


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 initial date of appointment in the Delaware Army National Guard (DEARNG) be changed from 25 October 2007 to 8 September 2007.  The applicant further requests that he be promoted to first lieutenant on 8 March 2009 in accordance with National Guard Memorandum, Subject:  Reduction in the Time in Grade (TIG) Requirement for Promotion of Reserve Component Officers to First Lieutenant, dated 19 August 2008.

2.  The applicant states, in effect, that he appeared before a Federal Recognition Board, on 31 August 2007, graduated from Officer Candidate School and was appointed on 8 September 2007.  Due to a misinterpretation of the Federal Recognition Board action that was held on 31 August 2007, a second Federal Recognition Board was held on 25 October 2007.  The chain of events occurred as follows:

   a.  Delaware's Senior Army Advisor (SRAA) was away on temporary duty and Delaware was using a Regular Army officer, a lieutenant colonel, for the Federal Recognition Board and sending paperwork to Maryland's SRAA for final review.

   b.  The Federal Recognition Board was conducted on 31 August 2007.  A Regular Army officer was not available and an Active Guard Reserve (AGR) Title 32 officer was used in accordance with National Guard Regulation 600-100.  When the result of the Federal Recognition Board was sent to the Maryland SRAA for his signature, he questioned the AGR officer as a member of the Federal Recognition Board.  After making contact with the National Guard Bureau (NGB) Policy office, the State was instructed to convene a second board and to show on the NGB Form 89, in the "Applications Professional Qualifications" block, paragraph D the following comment, "The applicant [sic] effective date for appointment as provided by NGR 600-100 is 8 September 2007."

   c.  A second Federal Recognition Board was conducted on 25 October 2007.  The Maryland SRAA signed the NGB Form 89 and it was submitted to the NGB Federal Recognition Section.  When the Federal Recognition Section of the NGB received the initial appointment packet the State was told the effective date could not be before the board date.  Paragraph D was deleted and the State published appointment orders with an effective date of 25 October 2007.  Federal Recognition Appointment Orders 71 AR [actually 73 AR] dated 18 March 2008 were published with an effective date of 25 October 2007.

3.  In support of his application, the applicant provides a copy of a certificate showing he successfully completed the prescribed course of instruction for commissioning as a second lieutenant at the 193rd Regiment Regional Training Institute, Officer Candidate School, on 8 September 2007; an NGB Form 89 (Proceedings of a Federal Recognition Examining Board), dated 31 August 2007; a copy of an NGB Form 337 (Oaths of Office), dated 8 September 2007; an NGB Form 89. dated 25 October 2007; a copy of an NGB Form 337, dated 25 October 2007; a copy of Orders 299-506 prepared by the DEARNG, dated 26 October 2007; a copy of Orders 022-503 prepared by the DEARNG, dated 22 January 2008; a copy of Special Orders 73 AR prepared by the Departments of the Army and Air Force, NGB, Washington, D.C., dated 19 March 2008; a copy of the applicant’s DA Form 1059 (Service School Academic Evaluation Report) for completion of the Basic Officer Leadership Course, Class 03-08, dated 10 June 2008; and a copy of e-Mail traffic between the DEARNG Command Chief Warrant Officer and a representative of the Office of the Chief, Army National Guard.

CONSIDERATION OF EVIDENCE:

1.  The evidence shows the applicant successfully completed the prescribed course of instruction for commissioning as a second lieutenant at the 193rd Regiment Regional Training Institute, Officer Candidate School, on 8 September 2007.

2.  On 31 August 2007, a Federal Recognition Examining Board was held by the DEARNG to determine the applicant's qualifications for Federal Recognition as a second lieutenant in the Ordnance Branch.

3.  The NGB Form 89, dated 31 August 2007, indicates the applicant was physically, morally, generally, and professionally qualified for the appointment he sought and it was recommended he be awarded Federal Recognition.

4.  The applicant accepted an appointment as a second lieutenant in the DEARNG on 8 September 2007.  On the same date, the applicant executed an NGB Form 337 as a second lieutenant in the DEARNG and was granted temporary Federal Recognition.

5.  On 25 October 2007, a second Federal Recognition Board was held by the DEARNG to determine the applicant's qualification for Federal Recognition as a second lieutenant.  The proceedings indicate he was again determined to be physically, morally, generally, and professionally qualified for the appointment as a second lieutenant in the Ordnance Corps and it was recommended that he be granted Federal Recognition.  An additional comment was entered in the section of the form titled "Applicant's Professional Qualifications."  The comment was as follows "The applicant's effective date for appointment as provided by NGR 600-100 is 8 September 2007."

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

7.  On 26 October 2007, Orders 299-506 were prepared by the DEARNG appointing the applicant in the Army National Guard as a second lieutenant with a date of rank and an effective date of 8 September 2007.

8.  On 22 January 2008 Orders 022-503 were published by the DEARNG amending Orders 299-506 and changing the applicant's date of rank and effective date to 25 October 2007.

9.  On 19 March 2008, Special Orders Number 73 AR were published by the Departments of the Army and Air Force, NGB, Washington, D.C. extending the applicant an initial appointment and Federal Recognition as a second lieutenant in the Army National Guard.  The effective date of the appointment is listed as 
25 October 2007.

10.  The applicant submitted a copy of his DA Form 1059 to show he successfully completed the Basic Officer Leadership Course, Class 003-08, and achieved course standards at the US Army Ordnance Center and School, Aberdeen Proving Ground, Maryland, on 13 June 2008.

11.  In the processing of this case, an advisory opinion was requested from the NGB, Arlington, Virginia.  The Chief, Personnel Division, provided a favorable recommendation for approval of the applicant's request to have his initial date of appointment adjusted from 25 October 2007 to 8 September 2007 and that he be promoted to first lieutenant on 8 March 2009.

12.  The advisory opinion was provided to the applicant for his information and possible comment on 6 May 2009.  The applicant did not submit a response.

13.  National Guard Regulation (NGR) 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.  

14.  NGR 600-100, paragraph 2-2, states in pertinent part, that the effective date of Federal Recognition for an 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. 

15.  NGR 600-100, paragraph 2-13, states in pertinent part, 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.

16.  NGR 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 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.

17.  Paragraph 5 of the undated Memorandum from the NGB, Subject:  Advisory Opinion - Request for Correction of Record states that "According to NGB Personnel Policy Memorandum 08-035, dated 25 November 2008, and Department of the Army, Office of the Assistant Secretary Manpower and Reserve Affairs Memorandum, dated 19 August 2008, Part Two 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 time in grade and completion of the Basic Officer Leadership Course, if otherwise qualified."

DISCUSSION AND CONCLUSIONS:

1.  Records show the applicant was found physically, morally, generally, and professionally qualified for the appointment as a second lieutenant in the Ordnance Corps on 31 August 2007 and it was recommended he be awarded Federal Recognition.  The applicant was administered the oath of office on 8 September 2007; however, he was not granted Federal Recognition based on the result of this board.

2.  The applicant was again considered for Federal Recognition on 25 October 2007.  He was again found physically, morally, generally, and professionally qualified for appointment as a second lieutenant in the Ordnance Corps.  The oath of office was administered to the applicant on 25 October 2007.

3.  The applicant was extended initial appointment and Federal Recognition as a second lieutenant in the Ordnance Corps in the Army National Guard with an effective date of 25 October 2007 by Special Orders Number 73 AR which were published by the Departments of the Army and Air Force, NGB on 19 March 2008.

4.  The facts and circumstance behind the administrative error that required a second Federal Recognition Board to be convened and a delay in the applicant's appointment and Federal Recognition are not available for the Board's review.  In the absence of evidence to the contrary, and in view of the actions that followed, administrative regularity is being presumed insofar as the Federal Recognition process for the appointment and recognition of the applicant is concerned.  It appears that administrative error(s) was/were introduced into the Federal Recognition process; however, it further appears that none were due to the applicant's fault.  The applicant should not continue to be penalized for an action that was not his responsibility to control.  

5.  Based on applicable law and regulation, the applicant is entitled to have the effective date listed in Special Orders Number 73 AR amended to show he was extended Federal Recognition in the rank of second lieutenant in the Ordnance Corps on 8 September 2007.

6.  Based on amendment of the applicant's effective date of extension of Federal Recognition and adjustment of his date of rank as a second lieutenant, the applicant is further entitled to promotion to the rank of first lieutenant with a date of rank and effective date of 8 March 2009 if otherwise qualified.

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 all Department of the Army records of the individual concerned be corrected by:

   a.  amending Special Orders Number 73 AR, dated 19 March 2008, that were published by the Departments of the Army and Air Force to show that the applicant was extended Federal Recognition effective 8 September 2007 in the rank and pay grade of second lieutenant, O-1;

   b.  voiding the Oaths of Office that was completed on 25 October 2007; 

	c.  revoking Orders 022-503 that were published by the DEARNG on 22 January 2008 which changed the applicant's date of rank and effective date from 8 September 2007 to 25 October 2007; and 

	d.  promoting the applicant to the rank of first lieutenant with a date of rank and effective date of 8 March 2009 and providing him all back pay and allowances if otherwise qualified.




      _______ _   __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)                                         AR20090007567



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ABCMR Record of Proceedings (cont)                                         AR20090007567



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