IN THE CASE OF:	  

		BOARD DATE:	  18 May 2010

		DOCKET NUMBER:  AR20090017142 


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:

* the date of his initial appointment be changed from 29 January 2009 to 11 May 2007
* the date of rank for his promotion to first lieutenant (1LT)/O-2 be changed to 11 November 2008
* the date of his initial appointment in the Texas Army National Guard (TXARNG) be changed from 29 January 2009 to 12 May 2007
* his DD Form 1A (Certificate of Appointment) be changed to reflect the correct appointment date
* all back pay and allowances as a result of these corrections

2.  The applicant states:

* he was commissioned through the University of Texas in the San Antonio Reserve Officers' Training Corps (ROTC) Program on 11 May 2007
* the state officer records section mailed his completed packet to the National Guard Bureau (NGB) for Federal recognition on or about 15 May 2007
* his packet was subsequently lost and he did not receive Federal recognition
* his promotion packet to O-2 was submitted to the state on or about 5 December 2008
* promotion orders were prepared, but when his packet reached NGB it was discovered he had not been granted Federal recognition and the orders were revoked
* these errors were not his fault
* he has done everything required with regard to completing his TXARNG commissioning packet, as well as his packet for promotion to O-2
* he has been either on active duty for operational support or on training orders since 11 November 2008
* he should receive back pay for the time he has been on orders

3.  The applicant provides:

* a self-authored memorandum to the Army Board for Correction of Military Records (ABCMR), dated 15 August 2009
* a DA Form 71 (Oath of Office – Military Personnel, dated 11 May 2007
* an NGB Form 337 (Oaths of Office), dated 11 May 2007
* TXARNG Orders 164-1205, dated 13 June 2007
* Officer Evaluation Report (OER) for the period 12 May 2008 through 11 May 2009
* OER for the period 12 May 2007 through 11 May 2008
* TXARNG Orders 353-1081, dated 18 December 2008
* TXARNG Orders 013-1004, dated 13 January 2009
* TXARNG Orders 270-103, dated 26 September 2008
* TXARNG Orders 064-293, dated 5 March 2009
* TXARNG Orders 105-174, dated 15 April 2009
* TXARNG Orders 141-031, dated 21 May 2009
* TXARNG Orders 198-609, dated 17 July 2009
* TXARNG Orders 245-020, dated 2 September 2009

CONSIDERATION OF EVIDENCE:

1.  On 11 May 2007, the applicant executed his DA Form 71 in pay grade O-1. He also executed his NGB Form 337 in pay grade O-1 on 11 May 2007.

2.  On 13 June 2007, TXARNG Orders 164-1205, published by Texas Military Forces, Army National Guard, Adjutant General's Department, Austin, TX,  appointed him in the ARNG in the grade of O-1, effective 12 May 2007.

3.  On 18 December 2008, TXARNG Orders 353-1081, same headquarters, promoted the applicant to the rank/grade of 1LT/O-2, effective 12 November 2008.

4.  The applicant was ordered to active duty effective 1 October 2008 in TXARNG Orders 270-103, same headquarters, dated 26 September 2008.

5.  On 13 January 2009, TXARNG Orders 013-1004, same headquarters, revoked TXARNG Orders 353-1081 (1LT promotion orders).

6.  The applicant was ordered to active duty for training, effective 6 March 2009, in TXARNG Orders 105-174, same headquarters, dated 15 April 2009.

7.  In NGB Special Orders Number 111 AR, dated 4 May 2009, the applicant was extended Federal recognition in the ARNG in the grade of O-1 for the purpose of initial appointment, effective 22 January 2009.

8.  On 21 May 2009, he was ordered to Full Time National Guard Duty, effective 18 May 2009, in TXARNG Orders 141-031, same headquarters.

9.  On 2 September 2009, TXARNG Orders 245-020, same headquarters, ordered the applicant to active duty as a member of his Reserve Component Unit, effective 1 October 2009, not to exceed 379 days, in support of Operation Iraqi Freedom.

10.  During the processing of this case, on 7 December 2009, an advisory opinion was obtained from the NGB, Chief, Personnel Division, who recommends approval of the applicant's requests and also recommends correction of the initial appointment date reflected on his DD Form 1A.

11.  The advisory official states the applicant was commissioned through the University of Texas at San Antonio ROTC on 11 May 2007.  The State Military Personnel Office (MILPO) mailed a complete initial appointment packet to the NGB on or about 15 May 2007.  The packet was never received by the NGB.  The applicant completed Infantry Basic Officer Leader Course on 26 August 2008 and on 5 December 2008 the State MILPO submitted his promotion packet for O-2 to the NGB, per State Order Number 353-1081, dated 18 December 2008, which was later revoked.  A second NGB Form 337 was signed on 
22 January 2009 and the packet was submitted to the NGB for initial appointment and Federal recognition and Orders Number 111 AR, dated
4 May 2009 were published.

12.  The advisory official states, in accordance with National Guard Regulation 600-100 (Commissioned Officer - Federal Recognition and Related Personnel Actions), chapter 2, paragraph 2-2, the effective date of Federal recognition for original appointment is the date on which the commissioned officer executes the Oaths of Office in the State.  Also, paragraph 2-3 states that temporary Federal recognition upon appointment establishes the authorized grade to be used by all officers in their Federally recognized status.  Paragraph 2.13 states that temporary Federal recognition may be extended to an officer who has been appointed in the ARNG of the State and found to be qualified by a Federal recognition board pending final determination of eligibility and appointed 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 the State appointment.  However, should the initial period of temporary Federal recognition expire due to administrative processing delays through no fault of the applicant, a subsequent Federal recognition board should be convened to consider the request again and grant another new period of temporary Federal recognition, if warranted.

13.  The advisory official states National Guard Regulation 600-100, chapter 10, paragraph 10-15b provides 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 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 Federal recognition board will forward the NGB Form 89 (ARNG Proceedings of a Federal Recognition Examining Board) 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 grade and branch in which the member is qualified.

14.  The advisory official further 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, "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 Course, if otherwise qualified."

15.  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.  He did not respond.




DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that the applicant is entitled to the requested relief.

2.  His records show that he executed his initial DA Form 71 as a Reserve commissioned officer on 11 May 2007.  He executed his NGB Form 337 for his appointment in the TXARNG as an O-1 on 11 May 2007 and on 13 June 2007, TXARNG Orders 164-1205 were published appointing him in the ARNG in the grade of O-1, effective 12 May 2007.

3.  According to National Guard Regulation 600-100, the effective date of Federal recognition for original appointment is the date on which the commissioned officer executes the Oaths of Office in the State.  He executed his Oaths of Office on 11 May 2007 and through no fault of his own, his appointment packet was not received by the proper authorities.  He should have been extended Federal recognition for his initial appointment in the pay grade of O-1 on 11 May 2007, the date that he executed his Oaths of Office. 

4.  He completed the Infantry Basic Officer Leadership Course on 26 August 2008.  Therefore, in accordance with Army policy he was eligible for promotion to the grade of O-2 effective 11 November 2008.

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 by:

* amending NGB Special Orders Number 111 AR, dated 4 May 2009 to show he was extended Federal recognition in the rank of 2LT/O-1 for his initial appointment in the TXARNG, with an effective date of 11 May 2007
* voiding his NGB Form 337, dated 22 January 2009
* voiding his NGB Form 337, dated 22 January 2009 and showing he executed an NGB Form 337 on 11 May 2007
* preparing the appropriate documentation to show that he was promoted to the rank of 1LT/O-2 and extended Federal recognition for the purpose of his promotion, with an effective date and date of rank of 18 November 2008
* paying 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)                                         AR20090017142



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ABCMR Record of Proceedings (cont)                                         AR20090017142



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