IN THE CASE OF:	  

		BOARD DATE:	  7 October 2010

		DOCKET NUMBER:  AR20100011665 


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 19 February 2009 to 14 May 2008 and promotion to first lieutenant (1LT) effective 14 November 2009.

2.  The applicant states he lost his initial Federal recognition due to no fault of his.  He was appointed on 14 May 2008 and was getting paid as a 2LT effective on that date.  He was told by the Officer Personnel Branch that he had lost his temporary Federal recognition and had to be reappointed.  The Officer Personnel Branch did not forward documents to the National Guard Bureau (NGB) upon his initial appointment.  He did not know that until he was told he had to be reappointed.  Additionally, he was due a promotion to 1LT, but he could not be promoted until his initial appointment was corrected.

3.  The applicant provides the following documents:

* two memoranda from officials at the Oklahoma Army National Guard (OKARNG)
* NGB Special Orders Number 113 AR
* DA Form 1059 (Service School Academic Evaluation Report)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* NGB Form 337 (Oaths of Office)
* Orders 04-001 and Orders 143-004
* two NGB Forms 89 (Proceedings of a Federal Recognition Examining Board)
* DA Form 71 (Oath of Office – Military Personnel)
* NGB Form 62E (Application for Federal Recognition as an Army National Guard Officer or Warrant Officer)

CONSIDERATION OF EVIDENCE:

1.  On 14 May 2008, a Federal Recognition Board (FRB) was held by the OKARNG 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 22 May 2008, Orders 143-004 appointed the applicant as an infantry 2LT in the OKARNG effective 14 May 2008.  He executed an NGB Form 337 in the OKARNG 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 12 March 2009, the applicant successfully completed the Infantry Basic Officer Leader Course at the U.S. Infantry School, Fort Benning, GA.

5.  On 10 February 2009, Orders 041-001 again appointed the applicant in the OKARNG as an infantry 2LT effective 18 February 2009.

6.  On 18 February 2009, a second FRB was held by the OKARNG 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.

7.  On 18 February 2009, he executed the oaths of office in the OKARNG.

8.  On 2 March 2009, the applicant completed the Infantry Basic Officer Leader Course.

9.  On 6 May 2009, NGB Special Orders Number 113 AR were published extending Federal recognition to the applicant for the purpose of initial appointment as a 2LT effective 18 February 2009 (the date of the second FRB).

10.  In the processing of this case, an advisory opinion was obtained on 15 March 2010.  The NGB Personnel Division Chief recommended approval of the applicant's request to adjust his initial appointment date to 14 May 2008 and his request to be promoted to 1LT on 14 November 2009.  On 10 August 2010, 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.

11.  The applicant submitted two memoranda from officials at the OKARNG which provided a chronology of what occurred and recommended adjusting the applicant's DOR to 2LT and his promotion to 1LT.

12.  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 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.

13.  National Guard Regulation 600-100, paragraph 2-2, states the effective date of Federal recognition for original appointment is that date on which the commissioned officer executes the oath 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.

14.  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 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.

15.  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.

16.  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 2LT's on the Reserve Active Status List to be promoted to 1LT with a minimum of 18 months of time in grade and completion of the basic officer leadership course, if otherwise qualified.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his records should be corrected to show he was extended Federal recognition for initial appointment as a 2LT on 14 May 2008 and promoted to 1LT on 14 November 2009.

2.  The evidence of record shows the applicant was granted temporary Federal recognition effective 14 May 2008 upon his initial appointment in the OKARNG 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, his Federal recognition packet was considered by another OKARNG FRB.  Based on the recommendations of the second board, NGB issued orders awarding him permanent Federal recognition effective 18 February 2009.  This administrative error denied the applicant both Federal recognition effective 14 May 2008 and promotion to 1LT 18 months later on 14 November 2009.

4.  It is clear that an administrative error denied the applicant permanent Federal recognition effective 14 May 2008.  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 14 May 2008.

5.  Furthermore, had the applicant's Federal recognition date been correct, he would have been promoted to 1LT effective 14 November 2009.  Therefore, he 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 of 14 November 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 the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that the State ARNG records and the Department of the Army records of the individual concerned be corrected, as appropriate, by:

* amending NGB Special Orders Number 113 AR, dated 6 May 2009, to show the applicant was extended Federal recognition in the grade of 2LT for the purpose of initial appointment effective 14 May 2008
* publishing NGB Special Orders to show the applicant was extended Federal recognition in the grade of 1LT for the purpose of promotion effective 14 November 2009
* 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)                                         AR20100011665



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ABCMR Record of Proceedings (cont)                                         AR20100011665



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