IN THE CASE OF:	  

		BOARD DATE:	  14 December 2010

		DOCKET NUMBER:  AR20100012769 


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, his records be corrected to show he received permanent Federal recognition for initial appointment as a second lieutenant in the Georgia Army National Guard National (GAARNG) on 
1 March 2005.  He also requests he be granted Federal recognition for his promotion to captain.

2.  The applicant states:

* Original appointment to second lieutenant was 1 March 2005
* The 6-month temporary Federal recognition expired before the Secretary of Defense signed the appointment scroll
* He was reappointed by a subsequent Federal Recognition Board on  
      28 July 2009
* He did get promoted to first lieutenant without his initial permanent Federal recognition but was notified that he needed his initial permanent Federal recognition before he could be promoted to captain
* Since his DOR is wrong due to the Federal recognition error he was not promoted in a timely manner  

3.  The applicant provides:

* Revocation orders, dated 20 November 2009
* Memorandum, dated 19 November 2009
* Promotion orders, dated 19 November 2009
* Initial appointment orders, dated 17 November 2009
* Appointment orders, dated 31 July 2009
* Oaths of Office, dated 28 July 2009
* NGB [National Guard Bureau] 89 (Proceedings of a Federal Recognition Examining Board), dated 28 July 2009
* NGB 89, dated 9 April 2009
* Active duty orders, dated 4 August 2008
* Promotion orders, dated 1 March 2007
* DA Form 1059 (Service School Academic Evaluation Board), dated 19 April 2006
* Oaths of Office, dated 1 March 2005
* Appointment orders, dated 25 February 2005
* NGB 62E (Application for Federal Recognition as an Army National Guard Officer or Warrant Officer and Appointment as a Reserve Commissioned Officer or Warrant Officer of the Army in the Army National Guard of the United States)
* NGB Form 89 (Proceedings of a Federal Recognition Examining Board), dated 13 May 2004
* Correspondence, dated 21 June 2010, from a Member of Congress

CONSIDERATION OF EVIDENCE:

1.  On 13 May 2004, a Federal Recognition Board was held by the GAARNG to determine if the applicant was qualified to be awarded Federal recognition as a second lieutenant.  The proceedings indicated that the applicant was satisfactory in his physical qualifications, moral character, and general qualifications.

2.  On 1 March 2005, the applicant executed the oaths of office in the grade of second lieutenant in the GAARNG and was granted temporary Federal recognition.  GAARNG orders show he was appointed in the ARNG effective 
1 March 2005.

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

4.  The applicant completed the Chemical Officer Basic Course on 19 April 2006.

5.  The applicant was promoted to first lieutenant on 1 March 2007. 

6.  On 9 April 2009, a Federal Recognition Board was held by the GAARNG to determine if the applicant was qualified to be awarded Federal recognition as a captain.  The proceedings indicated that the applicant was satisfactory in his physical qualifications, moral character, and general qualifications.

7.  On 9 April 2009, the applicant was promoted to captain.

8.  On 28 July 2009, a Federal Recognition Board was held by the GAARNG to determine if the applicant was qualified to be awarded Federal recognition as a second lieutenant.  The proceedings indicated that the applicant was satisfactory in his physical qualifications, moral character, and general qualifications.

9.  On 28 July 2009, the applicant executed a second oaths of office as a second lieutenant in the GAARNG and was awarded temporary Federal recognition.  GAARNG orders show he was appointed in the ARNG effective 
28 July 2009.

10.  NGB Special Orders Number 278 AR, dated 17 November 2009, show the applicant was extended Federal recognition for initial appointment in the grade of second lieutenant effective 28 July 2009.  

11.  In the processing of this case, a staff advisory opinion was obtained from the Personnel Division, NGB.  That office recommends approval of the applicant’s request to adjust his initial appointment date to 1 March 2005 and that his promotion to captain based on Unit Vacancy Promotion be back dated to 9 April 2009.  The opinion states that upon correction of his initial appointment, his record is [will be] forwarded to a Special Selection Board for promotion to captain under the 2008 promotion criteria.  The recommendation is based on Army Regulation 135-155, chapter 3, paragraph 3-5.

12.  The advisory opinion states an administrative error was discovered when the state requested a unit vacancy promotion to captain in April 2009 for the applicant.  It was discovered the applicant's initial appointment packet had never been received nor processed by the Federal recognition section.  Once the administrative error was discovered, the applicant signed two NGB Forms 89 on 9 April 2009 and 28 July 2009.  

13.  The advisory opinion points out the applicant met the minimum two year time-in-grade requirement for promotion, he completed the Chemical Officer Basic Leader Course on 19 April 2006, and he was eligible for promotion to first lieutenant effective 1 March 2007.

14.  A copy of the advisory opinion was forwarded to the applicant for comment and possible rebuttal.  The applicant did not respond within the given time frame.
15.  Paragraph 3-5 of Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) states mandatory Reserve of the Army selection boards and U.S. Army Reserve position vacancy selection boards will convene as announced by HQDA DCS, G-1 (DAPE-MP). The Secretary of the Army has delegated the authority to convene special selection boards to DCS, G-1.  The DCS, G-1 will convene promotion advisory board/special selection boards (see section III) on an "as needed" basis.  These boards will be convened to reconsider officers who were either improperly omitted from consideration due to administrative error, or who were non-selected for mandatory promotion as a result of material error.  Special selection boards are conducted as an additional duty of regularly scheduled mandatory Reserve of the Army selection boards for the same competitive category.

16.  National Guard Regulation 600-100 provides procedures for processing all applications for Federal recognition.  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.  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 a new period of temporary Federal recognition if warranted.

17.  Table 2-1 of Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers other than General Officers) states that the minimum time in grade as a second lieutenant for promotion to first lieutenant is 2 years.

18.  Table 2-2 of Army Regulation 135-155 states, in pertinent part, that second lieutenants must complete a resident officer basic course to be eligible for promotion to first lieutenant.





DISCUSSION AND CONCLUSIONS:

1.  Records show that the applicant was granted temporary Federal recognition effective 1 March 2005 upon his initial appointment in the GAARNG as a second lieutenant.  At that time, his Federal recognition packet and allied documents should have been forwarded to The Adjutant General of the State of Georgia for endorsement to the NGB for extension of permanent Federal recognition.  Through no fault of the applicant, this action was not taken.

2.  Subsequently, the NGB issued orders extending Federal recognition for initial appointment in the grade of second lieutenant effective 28 July 2009.

3.  From the foregoing, it is clear that an administrative error denied the applicant Federal recognition effective 1 March 2005.

4.  Based on applicable law and regulation, the applicant is entitled to have NGB Special Orders Number 278 AR, dated 17 November 2009, amended to show the effective date of permanent Federal recognition in the grade of second lieutenant is 1 March 2005.

5.  Evidence of record shows the applicant successfully completed the Chemical Officer Basic Course on 19 April 2006, met the time-in-grade requirement for promotion to first lieutenant, and was awarded permanent Federal recognition for promotion to first lieutenant with the effective date of 1 March 2007.  

6.  Orders show the applicant was promoted to captain effective 9 April 2009.   
Based on the advisory opinion recommendation, the applicant is entitled to be awarded permanent Federal recognition for promotion to captain with the effective date 9 April 2009.

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 Department of the Army records of the individual concerned be corrected by:

   a.  amending NGB Special Orders Number 278, dated 17 November 2009, to show that he was extended Federal recognition effective 1 March 2005 in the grade of second lieutenant; 

	b.  granting him Federal recognition as a captain effective 9 April 2009; and 

	c.  paying to him any and 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)                                         AR20100012769





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ABCMR Record of Proceedings (cont)                                         AR20100012769



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