IN THE CASE OF:	  

		BOARD DATE:	  15 October 2009

		DOCKET NUMBER:  AR20090009491 


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 effective date of appointment and date of rank (DOR) to second lieutenant (2LT) be adjusted from 11 February 2009 to 26 August 2007 and promotion to first lieutenant (1LT) effective 26 February 2009.

2.  The applicant states that he did not receive Federal Recognition as a 2LT in a timely manner, thus delaying his promotion to 1LT.  The oversight was an administrative error when his promotion to 1LT was returned by the National Guard Bureau (NGB) without action due to the lack of Federal Recognition for his initial appointment.  Additionally, he completed the Basic Officer Leadership Course (BOLC) and should have been promoted to 1LT within 18 months of his initial appointment.  

3.  The applicant provides a copy of NGB Federal Recognition Special Orders Number 122 AR, dated 15 May 2009; a copy of two NGB Forms 89 (Proceedings of a Federal Recognition Examining Board), dated 3 August 2006 and 10 February 2009; copies of two Oaths of Office, dated 26 August 2007 and
11 February 2009; copies of Orders 238-002 and 072-1036, issued by the Pennsylvania Army National Guard (PAARNG), dated 26 August 2007 and 
13 February 2009; and a copy of his DA Form 1059 (Service School Academic Evaluation Report), dated 29 July 2008, in support of his request.  




CONSIDERATION OF EVIDENCE:

1.  On 3 August 2006, a Federal Recognition Board (FRB) was held by the PAARNG 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 26 August 2007, the PAARNG published Orders 238-002 appointing the applicant as a 2LT in the PAARNG effective 26 August 2007.  He executed an oath of office in the PAARNG on the same date.  

3.  There is no indication in the applicant’s records that he was granted Federal Recognition for his initial appointment.  

4.  On 29 July 2008, the applicant successfully completed the Field Artillery BOLC at the U.S. Army Field Artillery School, Fort Sill OK.

5.  On 11 February 2009, a second FRB was held by the PAARNG to determine if the applicant was qualified to be awarded Federal Recognition.  The proceedings indicated the applicant was satisfactory in his physical qualifications, moral character and general qualifications.  

6.  On 13 February 2009, the PAARNG published Orders Number 072-1036 appointing the applicant as a 2LT in the PAARNG effective 11 February 2009.  He executed an oath of office on the same date.

7.  On 15 May 2009, the NGB published Special Orders Number 122 AR extending the applicant Federal Recognition for permanent initial appointment as a 2LT effective 11 February 2009.

8.  An advisory opinion was obtained on 3 June 2009 in the processing of this case.  The Chief of the Personnel Division, NGB, recommended approval of the applicant’s request to adjust his initial appointment date to 26 August 2007, that he be promoted to 1LT on 26 February 2009, and that he receive all back pay and allowances.  The applicant was provided with a copy of this advisory opinion; however, he did not respond. 

9.  National Guard Regulation (NGR) 600-100 provides procedures for processing applications for Federal Recognition.  Paragraph 2-1 states 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.  

10.  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. 

11.  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.

12.  NGR 600-100, paragraph 10-15b states that temporary Federal Recognition may be granted by an FRB 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.

13.  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 26 August 2007 and promotion to 1LT on 26 February 2009.

2.  The evidence of record shows that the applicant was granted temporary Federal Recognition effective 26 August 2007 upon his initial appointment in the PAARNG 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, Pennsylvania, for endorsement to the NGB 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 PAARNG FRB.  Based on the recommendations of the second board, the NGB issued orders awarding him permanent Federal Recognition effective 11 February 2009.  This administrative error denied the applicant both Federal Recognition effective 26 August 2007 and promotion to 1LT 18 months later, on 26 February 2009.

4.  It is clear that an administrative error denied him permanent Federal Recognition effective 26 August 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 26 August 2007.

5.  Furthermore, had the applicant's Federal Recognition date been correct, he would have been promoted to 1LT effective 26 February 2009.  Therefore, the applicant is entitled to have Federal Recognition orders issued to grant him Federal Recognition for promotion to 1LT with an effective date and date of rank as 26 February 2009 and to receive back pay and allowances as a result of correction of his initial appointment and 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 122 AR, dated 15 May 2009, to show he was extended Federal Recognition in the rank of 2LT effective 26 August 2007; 

	b  issuing Federal Recognition Special Orders to show he was extended Federal Recognition for promotion to 1LT effective and with a date of rank of 
26 February 2009; and

	c.  paying to him all back pay and allowances due 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)                                         AR20090009491



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ABCMR Record of Proceedings (cont)                                         AR20090009491



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