IN THE CASE OF:	  

		BOARD DATE:	  11 August 2009

		DOCKET NUMBER:  AR20090011195 


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 11 February 2009 to 11 August 2007, and promotion to first lieutenant (1LT), effective 11 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 lack of Federal recognition for 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 Special Orders Number 135 AR, dated 3 June 2009, extending Federal recognition to the applicant for the purpose of initial appointment; a copy of two NGB Forms 89 (Proceedings of a Federal Recognition Examining Board), dated 7 August 2007 and 10 February 2009; a copy of his two NGB Forms 337 (Oaths of Office), dated 11 August 2007 and
11 February 2009; copies of Commonwealth of Pennsylvania, Department of Military and Veterans Affairs, The Adjutant General, Annville, PA, Orders
220-1041, dated 8 August 2007, and Orders 072-1028, dated 13 February 2009; and a copy of his DA Form 1059 (Service School Academic Evaluation Report), dated 9 June 2008, in support of his request.  


CONSIDERATION OF EVIDENCE:

1.  On 7 August 2007, a Federal Recognition Board (FRB) was held by the Pennsylvania Army National Guard (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 8 August 2007, Orders 220-1041 appointed the applicant as an infantry 2LT in the PAARNG, effective 11 August 2007.  He executed an NGB Form    337 in the PAARNG effective 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 9 June 2008, the applicant successfully completed the Infantry BOLC at the U.S. Infantry School, Fort Benning, GA.

5.  On 10 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 that the applicant was satisfactory in his physical qualifications, moral character, and general qualifications.  

6.  On 13 February 2009, Orders 072-1028 appointed the applicant in the PAARNG as an infantry 2LT, effective 11 February 2009.  He executed an NGB Form 337 effective the same date.

7.  On 3 June 2009, NGB Special Orders Number 135 AR were published extending Federal recognition to the applicant for the purpose of initial appointment as a 2LT, effective 11 February 2009.  

8.  In the processing of this case, an advisory opinion was obtained on 1 July 2009.  The Chief of Personnel Division, NGB, recommended approval of the applicant’s request to adjust his initial appointment date to 11 August 2007 and request to be promoted to 1LT on 11 February 2009.  On 7 July 2009, a copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  The applicant concurred with the information provided.

9.  National Guard Regulation 600-100 (Commissioned Officers - 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 ARNG of the United States if they have not already accepted such appointment.  

10.  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. 

11.  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 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.  National Guard Regulation 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 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.

13.  National Guard Bureau 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 11 August 2007 and promotion to 1LT on 11 February 2009.

2.  The evidence of record shows that the applicant was granted temporary Federal recognition, effective 11 August 2007, upon his initial appointment in the PAARNG and execution of the NGB Form 337.  At that time, his complete Federal recognition packet and allied documents should have been forwarded to The Adjutant General of the State of Pennsylvania for endorsement to 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, NGB issued orders awarding him permanent Federal recognition, effective 11 February 2009.  This administrative error denied the applicant both Federal recognition, effective 11 August 2007, and promotion to 1LT, 18 months later, on 11 February 2009.

4.  It is clear that an administrative error denied the applicant permanent Federal recognition, effective 11 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 11 August 2007.

5.  Furthermore, had the applicant's Federal recognition date been correct, he would have been promoted to 1LT, effective 11 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 11 February 2009 and to receive all back pay and allowances due 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 the state Army National Guard records and the Department of the Army records of the individual concerned be corrected, as appropriate, by:

	a.  amending National Guard Bureau Special Orders Number 135 AR, dated 3 June 2009, to show the applicant was extended Federal recognition in the grade of 2LT for the purpose of initial appointment, effective 11 August 2007; 

	b.  publishing National Guard Bureau Special Orders to show the applicant was extended Federal recognition in the grade of 1LT for the purpose of promotion, effective 11 February 2009; and

	c.  paying the applicant 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)                                         AR20090011195



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ABCMR Record of Proceedings (cont)                                         AR20090011195



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