IN THE CASE OF:	

		BOARD DATE:	16 June 2009  

		DOCKET NUMBER:  AR20090007581 


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 adjustment of his initial effective date of appointment and date of rank (DOR) to second lieutenant (2LT) from 25 October 2007 to 8 September 2007 and promotion to first lieutenant (1LT) effective 8 March 2009.

2.  The applicant states that he appeared before the Federal Recognition Board (FRB) on 31 August 2007 and graduated from Officer Candidate School (OCS) and was appointed on 8 September 2007.  However, due to misinterpretation of the FRB action, a second FRB was held on 25 October 2007.  The Delaware Army National Guard (DEARNG) Senior Army Advisor (SRAA) was in a temporary duty status at the time and the DEARNG was using a Regular Army lieutenant colonel for the FRB and forwarding the paperwork to the Maryland Army National Guard (MDARNG) SRAA for final review.  During the 31 August 2007 FRB, a Regular Army officer was not available and an Active Guard Reserve (AGR) officer was used instead.  When the FRB results went to the MDARNG SRAA for signature, he questioned the AGR officer as a member of the FRB.  After some coordination, a second FRB was held on 25 October 2007 with a stipulation that an entry would be made to show his effective date of appointment as 8 September 2007.  Subsequent to the second FRB, the National Guard Bureau (NGB) published the Federal Recognition order on 18 March 2008, but with an effective date of 25 October 2007. 

3.  The applicant provides a copy of NGB Federal Recognition Special Orders Number 73 AR, dated 19 March 2008, initial appointment; a copy of two NGB Forms 89 (Proceedings of a Federal Recognition Examining Board), dated        25 October 2007 and 31 August 2007; a copy of his two Oaths of Office, dated 
8 September 2007 and 25 October 2007; copies of Orders 299-502 and 022-508, issued by the DEARNG on 26 October 2007 and 22 January 2008; and a copy of his Officer Candidate School certificate, dated 8 September 2007, in support of his request.  

CONSIDERATION OF EVIDENCE:

1.  On 31 August 2007, a FRB 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.  With prior enlisted service in the DEARNG and the Regular Army, the applicant’s records show he completed OCS on 8 September 2007.

3.  On 8 September 2007, the applicant executed an oath of office in the DEARNG.  However, there is no indication in his records that he was appointed as a second lieutenant in the DEARNG or that he was granted Federal recognition for initial appointment.

4.  On 25 October 2007, a second FRB 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.  The Applicant’s Professional Qualifications portion of the NGB Form 89 shows the entry “The applicant [sic] effective date for appointment as provided by NGR 600-100 (Commissioned Officer-Federal Recognition and Related Personnel Actions) is 8 SEP 2007.”  He also executed a second oath of office as a 2LT in the DEARNG on the same date.

5.  On 26 October 2007, DEARNG published Orders 299-502, appointing the applicant in the DEARNG as an Ordnance Corps 2LT with an effective date and date of rank (DOR) of 8 September 2007.  The orders further assigned him to the 262nd Maintenance Company, Dagsboro, DE. 

6.  On 22 January 2008, DEARNG published Orders 022-508 amending the applicant’s 26 October 2007 Orders to show his effective date and DOR for initial appointment as 25 October 2007. 

7.  On 19 March 2008, the NGB published Special Orders Number 73 AR extending the applicant Federal Recognition for permanent initial appointment as a 2LT effective 25 October 2007.  


8.  On 18 December 2008, the applicant completed the Basic Officer Leadership Course, Phase II, and on 15 April 2009, he completed Phase III of this course.

9.  On 18 May 2009, the NGB published Special Orders Number 123 AR extending the applicant Federal Recognition for promotion to first lieutenant (1LT) effective 18 May 2009.  

10.  An advisory opinion was obtained on 20 April 2009 in the processing of this case.  The Chief of Personnel Division, NGB, recommended approval of the applicant’s request to adjust his initial appointment date to 8 September 2007 and request to be promoted to 1LT on 8 March 2009.   

11.  NGR 600-100 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 ARNG of the United States if they have not already accepted such appointment.  

12.  NGR 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 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. 

13.  NGR 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 a 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 six 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 FRB should be convened to consider the request again and grant another new period of temporary Federal Recognition if warranted.

14.  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 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.  NGB Personnel Policy Memorandum 08-035, dated 25 November 2008 and Department of the Army, Office of the Assistant Secretary of the Army (Manpower and Reserve Affairs) Memorandum, dated 19 August 2008, state in pertinent part that “This memorandum establishes Department of the Army Policy authorizing Reserve Component 2LTs on the Reserve Active Status List (RASL) to be promoted to 1LT with a minimum of 18 months time in grade (TIG) and completion of the Basic Officer Leadership Course if otherwise qualified 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show he was extended Federal Recognition for initial appointment as a 2LT on 8 September 2007 and promotion to 1LT on 8 March 2009

2.  The evidence of record shows that the applicant was granted temporary Federal Recognition effective 8 September 2007 upon his initial appointment in the DEARNG and execution of the oath of office.  At that time, his complete Federal Recognition packet and allied documents should have been forwarded to The Adjutant General of the State of Delaware for endorsement to the National Guard Bureau for extension of permanent Federal recognition.  Through no fault of the applicant, this action was not taken. 

3.  Subsequently, the applicant's Federal Recognition packet was considered by another DEARNG FRB.  Based on the recommendations of the second Board, NGB issued orders awarding him permanent Federal Recognition effective 25 October 2007.  This administrative error denied the applicant both Federal Recognition effective 8 September 2007 and promotion to 1LT on 8 March 2009.

4.  It is clear that an administrative error denied him permanent Federal Recognition effective 8 September 2007.  Based on applicable law and regulation, he is entitled to have his Federal Recognition orders amended to show the effective date of permanent Federal Recognition in the rank of 2LT as 8 September 2007.
5.  Furthermore, had the applicant's Federal recognition date been correct, he would have been promoted to 1LT effective 8 March 2009.  Therefore, the applicant is entitled to have his Federal Recognition orders amended to show the effective date of Federal Recognition for promotion to 1LT as 8 March 2009 and to receive back pay and allowances as a result of his promotion to 1LT.

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 Federal Recognition Special Orders Number 73 AR, dated 19 March 2008, to show he was extended Federal Recognition in the grade of 2LT effective 8 September 2007; 

	b  amending Federal Recognition Special Orders Number 123 AR, dated 18 May 2009 to show he was extended Federal Recognition for promotion to 1LT effective 8 March 2009; and

	c.  restoration of back pay and allowances as a result of these 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)                                         AR20090007581





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ABCMR Record of Proceedings (cont)                                         AR20090007581



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