IN THE CASE OF:	  

		BOARD DATE:	  1 September 2009

		DOCKET NUMBER:  AR20090011210


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, in effect, he did not receive permanent Federal recognition as a 2LT in a timely fashion, thus delaying his initial appointment and his promotion to 1LT.

3.  The applicant provides numerous documents in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The Pennsylvania Army National Guard (PAARNG) approved the proceedings of a Federal Recognition Examining Board (FRB) on 8 August 2007, and the applicant executed an Oath of Office on 11 August 2007.  State Order Number 220-1039 was published on 8 August 2007 appointing the applicant as a 2LT, Infantry, effective 11 August 2007.

2.  The applicant completed the Infantry Basic Officer Leadership Course on 26 February 2009.



3.  There is no evidence in the applicant’s records to indicate he was granted permanent Federal recognition for his initial appointment.

4.  On 11 February 2009, the PAARNG held a second FRB.  Orders Number 076-999, dated 17 March 2009, appointed the applicant in the PAARNG in the rank of 2LT, Infantry, effective 11 February 2009.  Order Number 122 AR, dated 
15 May 2009, awarded the applicant permanent Federal recognition, effective
11 February 2009.

5.  In the processing of this case, an advisory opinion was obtained on 19 June 2009.  The Chief, Personnel Division, National Guard Bureau, recommended approval of the applicant’s request to adjust his initial appointment date to 11 August 2007 and to promote him to 1LT effective 26 February 2009.  On 8 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 failed to respond.

6.  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 Army National Guard 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, National Guard Bureau 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.  

7.  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. 

8.  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 Army National Guard 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 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 FRB should be convened to consider the request again and grant another new period of temporary Federal recognition, if warranted.

9.  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 Army National Guard.  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 National Guard Bureau.  If the member meets the qualifications and requirements for Federal recognition, the Chief, National Guard Bureau extends permanent Federal recognition to the member in the grade and branch in which the member is qualified.

10.  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, dated19 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 the applicant was granted temporary Federal Recognition effective 11 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, State of Pennsylvania, 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 PAARNG FRB.  Based on the recommendations of the second Board, the National Guard Bureau issued orders awarding him permanent Federal Recognition effective 11 February 2009.  This administrative error denied the applicant both Federal Recognition effective 11 February 2009 and promotion to 1LT upon completion of Infantry Basic Officer Leadership Course on 26 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 26 February 2009 when he completed the Infantry Basic Officer Leadership Course.  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 DOR of 26 February 2009 and to receive back pay and allowances as a result of the correction of his initial appointment and promotion to 1LT.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X___  ___X____  ___X____  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 partial relief.  As a result, the Board recommends that all Department of the Army and National Guard 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 grade of 2LT, effective 11 August 2007; 


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

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

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to extending Federal recognition for promotion to 1LT, effective 11 February 2009.




      _______ _  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)                                         AR20090011210



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ABCMR Record of Proceedings (cont)                                         AR20090011210



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