IN THE CASE OF:	  

		BOARD DATE:	  26 April 2011

		DOCKET NUMBER:  AR20100021819 


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 correction of his military records to show his date of appointment as a second lieutenant as 27 September 2006.

2.  The applicant states that he appeared before a Federal Recognition Board (FRB) on 27 September 2006.  His temporary Federal recognition expired before it could be processed through the National Guard Bureau (NGB).  He appeared before a second FRB and was reappointed on 30 September 2009.  He had been an active drilling member the entire time from 2006 to 2009.  He asks that his original appointment date be restored to allow for his promotion to first lieutenant.

3.  The applicant provides copies of his NGB Forms 337 (Oaths of Office) dated in 2006 and 2009; appointment orders dated in 2006 and 2009; NGB 89 (Proceedings of a Federal Recognition Examining Board), dated 30 September 2009; NGB Special Orders Number 228 AR, dated 15 June 2010; and his DA Form 1059 (Service School Academic Evaluation Report) dated 23 April 2009.

CONSIDERATION OF EVIDENCE:

1.  At the time of his application, the applicant was serving as a second lieutenant in the Indiana Army National Guard (INARNG).

2.  An NGB Form 337, dated 27 September 2006, shows the applicant took his oath of office and that it was authenticated by the FRB.

3.  An NGB 89, dated 30 September 2009, shows the applicant was found qualified and recommended for Federal recognition.  He was placed against paragraph 202A, line 01.  

4.  On 30 September 2009, the applicant signed an NGB Form 337, swearing his oath of office as a second lieutenant.

5.  NGB Special Orders Number 128 AR, dated 15 June 2010, announced the extension of Federal recognition in the Army National Guard to the applicant for the purpose of initial appointment as a second lieutenant with a date of rank of
30 September 2009.

6.  A DA Form 1059, dated 23 April 2009, reports that the applicant successfully completed the Engineer Basic Officer Leader Course.

7.  In the processing of this case, an advisory opinion was obtained from the NGB, Chief, Personnel Policy Division, Arlington, Virginia.  

	a.  The opinion stated that due to administrative error through no fault of the applicant, his temporary Federal recognition had expired, necessitating him to be reappointed.  He was accordingly reappointed effective 30 September 2009.    

	b.  The opinion stated that it would be unfair to maintain the Soldier's date of appointment and date of rank as 30 September 2009.  Doing so would penalize both the applicant and deprive the Army National Guard of the Soldier's service in positions of greater responsibility commensurate with his time in service.

	c.  The opinion also provided that in accordance with National Guard Regulation 600-100 and Army  Regulation 135-155, officers must meet the minimum time in grade and military education requirements for promotion to first lieutenant.  The minimum TIG required by Title 10, U. S. Code 14303 is 
18 months.  

	d.  Reserve Component second lieutenants on the Reserve Active-Status List would be promoted with a minimum of 18 months TIG and completion of the Basic Officer Leadership course, if otherwise qualified.  

	e.  The opinion recommended approval of the applicant's request. 

8.  On 24 September 2010, a copy of the advisory opinion was sent to the applicant for his information and opportunity to submit comments or rebuttal.  No response has been received.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his date of rank and effective date for second lieutenant should be changed to 27 September 2006.

2.  The evidence clearly shows that the applicant was recommended for Federal recognition and met the requirements effective 27 September 2006.  Through no fault of his own, his appointment was reconsidered by a subsequent FRB 
resulting in an adjusted Federal recognition date of 30 September 2009.  As a matter of equity, his original date of rank and effective date should be restored with payment of any back pay and allowances that may be due.

3.  In view of the above, the applicant’s records should be corrected to show that he was appointed in the INARNG and as a Reserve of the Army as a second lieutenant with a date of rank of 27 September 2006 and that he was granted Federal recognition on this date.  

4.  Furthermore, the applicant's records should be reviewed to determine his eligibility for promotion to first lieutenant.  If he is found to have been qualified for promotion to first lieutenant as of 23 April 2009, the date he completed the required military education, his records should be further corrected to show he was thus promoted and granted Federal recognition as a first lieutenant as of that date.

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:

   a.  amending NGB Special Orders Number 128 AR, dated 15 June 2010, to show that he was extended Federal recognition in the Army National Guard as a second lieutenant, effective 27 September 2006;

	b.  Furthermore, based on this correction, that the applicant's records should be reviewed to determine if he was eligible for promotion to first lieutenant effective 23 April 2008, when he completed the military education requirement; and if found fully qualified, that he be promoted with the same date of rank and effective date and Federal recognition date as would have occurred had this correction not been necessary; and

   c.  auditing his records and paying him any monies due him 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)                                         AR20100021819





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ABCMR Record of Proceedings (cont)                                         AR20100021819



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