IN THE CASE OF:	  

		BOARD DATE:	    22 July 2010

		DOCKET NUMBER:  AR20100010804 


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 restoration of his initial appointment date in the rank of second lieutenant (2LT).

2.  The applicant states:

* he was initially appointed as a 2LT in the Indiana Army National Guard (INARNG) on 8 July 2007
* his packet was not timely processed through the National Guard Bureau (NGB) and his Federal recognition expired resulting in administrative error
* he remained an active drilling member in the INARNG from 8 July 2007 through his reappointment on 24 June 2009

3.  The applicant provides the following:

* Federal recognition orders
* appointment orders
* discharge/appointment orders
* two NGB Forms 337(Oaths of Office)
* two DA Forms 71 (Oath of Office - Military Personnel)
* an NGB Form 89 (Proceedings of a Federal Recognition Examining Board)


CONSIDERATION OF EVIDENCE:

1.  On 8 July 2007, the applicant was appointed as a 2LT in the Signal Corps, executed his oaths of office as a 2LT in the INARNG, and was granted temporary Federal recognition for 6 months.

2.  There is no evidence the applicant received permanent Federal recognition as a 2LT from NGB within the 6-month period required by National Guard/Army regulations.  As a result, his temporary Federal recognition expired.

3.  A DA Form 1059 (Service School Academic Evaluation Report) on file shows the applicant achieved course standards and completed the Signal Officer Basic Course on 4 November 2008.

4.  On 24 June 2009, a second Federal Recognition Board was held by the INARNG 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.

5.  On 24 June 2009, the applicant executed the second oaths of office as a 2LT in the INARNG and was granted temporary Federal recognition.

6.  NGB Special Orders Number 14 AR, dated 26 January 2010, awarded the applicant permanent Federal recognition for initial appointment to the grade of 2LT effective 24 June 2009.

7.  In the processing of this case an advisory opinion was obtained from the Chief, Personnel Division, NGB, wherein he indicated that due to an administrative error, the applicant's 6-month temporary Federal recognition expired and he was not boarded by his State until 24 June 2009.  Based on the initial appointment guidance found in National Guard Regulation 600-100 (Commissioned Officer - Federal Recognition and Related Personnel Actions), the advisory opinion recommended the applicant's initial appointment date be adjusted to 8 July 2007, he be promoted to first lieutenant (1LT) effective 8 July 2009, and he be provided all back pay and allowances as a result of the adjustment.

8.  The applicant was provided a copy of the NGB advisory opinion for his comments and/or rebuttal on 19 March 2010.  No response has been received.

9.  National Guard Regulation 600-100 provides procedures for processing all applications for Federal recognition.  Paragraph 2-1 states that commissioned officers of the ARNG are appointed by 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 Army National Guard 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 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 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 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 and allied documents to The Adjutant General.  When the member is favorably recommended, The Adjutant General will endorse the packet to 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.  Paragraph 2-1 of Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) states that an officer in the grade of 2LT will be considered for promotion without review by a selection board.  The officer's records will be screened to determine eligibility for promotion to the next higher grade far enough in advance to permit promotion on the date the promotion service is completed in compliance with table 2-1 or table 2-3 of this regulation.

14.  Table 2-1 of Army Regulation 135-155 states that the minimum time in grade as a 2LT for promotion to 1LT is 2 years.

15.  Table 2-2 of Army Regulation 135-155 states 2LT's must complete a resident officer basic course to be eligible for promotion to 1LT.

16.  NGB Policy Memorandum, dated 25 November 2008, provided the authority to promote all National Guard officers in the rank of 2LT on the Reserve Active Status List with a minimum of 18 months of time in grade.

DISCUSSION AND CONCLUSIONS:

1.  Records show the applicant was granted temporary Federal recognition effective 8 July 2007 upon his initial appointment in the INARNG as a 2LT.  At that time, his Federal recognition packet and allied documents should have been forwarded to The Adjutant General of the Commonwealth of Indiana for endorsement to NGB for extension of permanent Federal recognition.  Through no fault of the applicant, this action was not taken.

2.  Subsequently, the applicant's Federal recognition packet was considered by a second INARNG Federal Recognition Board.

3.  Based on the recommendations of the second INARNG Federal Recognition Board, NGB issued orders awarding the applicant permanent Federal recognition effective 24 June 2009.

4.  From the foregoing, it is clear that an administrative error denied the applicant permanent Federal recognition effective 8 July 2007.

5.  Based on applicable law and regulation, the applicant is entitled to have Special Orders Number 14 AR amended to show the effective date of permanent Federal recognition in the grade of 2LT as 8 July 2007.

6.  Additionally, based on the above correction and the fact the applicant successfully completed the Signal Officer Basic Course on 4 November 2008 and met the 18-month time-in-grade requirement for promotion to the grade of 1LT in accordance with the NGB policy memorandum dated 25 November 2008, the applicant should be awarded permanent Federal recognition for promotion to 1LT with an effective date of 8 January 2009.

BOARD VOTE:

___X___  ___X____  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined 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 amending Special Orders Number 14 AR, dated 26 January 2010, to show he was extended Federal recognition effective 8 July 2007 in the grade of 2LT.

2.  The Board further recommends the applicant be promoted to the grade of 1LT with an effective date of promotion, a date of rank, and an effective date of Federal recognition of 8 January 2009 and that he be provided 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)                                         AR20100010804



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ABCMR Record of Proceedings (cont)                                         AR20100010804



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