IN THE CASE OF:	 

		BOARD DATE:	  1 April 2010

		DOCKET NUMBER:  AR20090017832 


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, in effect, that his records be corrected to show he received permanent Federal recognition for initial appointment as a first lieutenant in the Pennsylvania Army National Guard National (PAARNG) on 30 January 2008 (this date was changed from 28 December 2007 based upon his response to the advisory opinion).

2.  The applicant states he did not receive Federal recognition for his initial appointment as a first lieutenant in a timely manner thus delaying his promotion to captain.  He contends the oversight was an administrative error brought to his attention when his promotion to captain was returned without action due to the lack of initial Federal recognition.  He states Federal recognition was granted in September 2009 with the correct date of rank (DOR) for first lieutenant.  He indicates he should have received Federal recognition for his initial appointment as a first lieutenant effective 30 January 2008.

3.  The applicant provides a DA Form 67-9 (Officer Evaluation Report); reassignment orders, dated 20 November 2008; National Guard Bureau (NGB) Special Orders Number 216 AR, dated 2 September 2009; appointment orders, dated 31 January 2008 and 1 July 2009; oaths of office, dated 30 January 2008 and 30 April 2009; copies of Proceedings of a Federal Recognition Examining Board, dated 29 January 2008 and 29 April 2009; a memorandum, dated 26 June 2009; a DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 30 March 2007; discharge orders, dated 1 February 2008; a DD Form 215 (Correction to DD Form 214); and an NGB Form 22 (Report of Separation and Record of Service).
CONSIDERATION OF EVIDENCE:

1.  On 29 January 2008, a Federal Recognition Board was held by the PAARNG to determine if the applicant was qualified to be awarded Federal recognition as a first lieutenant in the Judge Advocate General's Corps.  The proceedings indicated the applicant was satisfactory in his physical qualifications, moral character, and general qualifications.

2.  On 30 January 2008, the applicant executed the oaths of office in the grade of first lieutenant in the PAARNG and was granted temporary Federal recognition.  PAARNG orders show he was appointed in the ARNG effective 30 January 2008.

3.  There is no evidence that the applicant received permanent Federal recognition as a first lieutenant from the NGB within the 6-month period required by ARNG regulations.  As a result, his temporary Federal recognition expired.

4.  On 29 April 2009, a Federal Recognition Board was again held by the PAARNG to determine if the applicant was qualified to be awarded Federal recognition as a first lieutenant.  The proceedings indicated the applicant was satisfactory in his physical qualifications, moral character, and general qualifications.

5.  On 30 April 2009, the applicant executed the second oaths of office as a first lieutenant in the PAARNG and was awarded temporary Federal recognition.  PAARNG orders show he was appointed in the ARNG effective 30 April 2009 with a DOR of 30 January 2007.

6.  NGB Special Orders Number 216 AR, dated 2 September 2009, show the applicant was extended Federal recognition for initial appointment in the grade of first lieutenant effective 30 April 2009 with a DOR of 30 January 2007.

7.  In the processing of this case, a staff advisory opinion was obtained from the Personnel Division, NGB.  That office recommends the applicant's initial appointment date be adjusted to 30 January 2008.  The recommendation is based on a conversation with the PAARNG and documents provided by the Military Personnel Office.  The advisory opinion also cited National Guard Regulation 600-100 (Commissioned Officers - Federal Recognition and Related Personnel Actions), chapter 2, paragraphs 2-2, 2-3, and 2-13.

8.  The advisory opinion points out that the applicant was initially appointed in the PAARNG on 30 January 2008 according to the Federal Recognition Board and the oaths of office signed by the applicant on 30 January 2008.  Due to an administrative error, his temporary Federal recognition expired.  A second Federal Recognition Board was conducted by the PAARNG and the applicant signed the second oaths of office on 30 April 2009.

9.  A copy of the advisory opinion was forwarded to the applicant for comment and possible rebuttal.  The applicant concurred with the advisory opinion.

10.  National Guard Regulation 600-100 provides procedures for processing all applications for Federal recognition.  Paragraph 2-2 states 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 2-3 states temporary Federal recognition upon initial appointment establishes the authorized grade to be used by all officers in their Federally-recognized status.  Paragraph 2-13 states 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 Federal Recognition Board 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 Federal Recognition Board should be convened to consider the request again and grant a new period of temporary Federal recognition if warranted.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to correct his records to show he received permanent Federal recognition for initial appointment as a first lieutenant in the PAARNG on 30 January 2008 has merit.

2.  Records show the applicant was granted temporary Federal recognition effective 30 January 2008 upon his initial appointment in the PAARNG as a first lieutenant.  At that time, his Federal recognition packet and allied documents should have been forwarded to The Adjutant General of the State of 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, NGB issued orders extending Federal recognition for initial appointment in the grade of first lieutenant effective 30 April 2009.

4.  From the foregoing, it is clear an administrative error denied the applicant Federal recognition effective 30 January 2008.

5.  Based on equity, the applicant is entitled to have NGB Special Orders Number 216 AR, dated 2 September 2009, amended to show the effective date of permanent Federal recognition in the grade of first lieutenant is 30 January 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 all State Army National Guard and Department of the Army records of the individual concerned be corrected by:
 
	a.  amending NGB Special Orders Number 216 AR, dated 2 September 2009, to show that he was extended Federal recognition effective 30 January 2008 in the grade of first lieutenant and

	b.  paying to him any and all back pay and allowances due as a result of this correction.



      ___________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)                                         AR20090017832



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ABCMR Record of Proceedings (cont)                                         AR20090017832



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