IN THE CASE OF:	  

		BOARD DATE:	  21 July 2011

		DOCKET NUMBER:  AR20100022250 


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 record to show he was extended Federal recognition on his initial effective date of appointment and date of rank (DOR) to second lieutenant (2LT) to allow for promotion to first lieutenant (1LT) on the earliest date possible.

2.  The applicant states this administrative error was due to no fault of his own.  He was appointed the Indiana Army National Guard (INARNG) on a temporary Federal recognition on 22 December 2006.  His packet did not go through the National Guard Bureau (NGB) in a timely manner prior to the expiration of his temporary Federal Recognition.  He was reappointed on 30 September 2009.  He attests that he remained an active drilling member during this period.

3.  He provides the following documents:

* two NGB Forms 337 (Oaths of Office)
* two appointment orders
* two DA Forms 71 (Oath of Office – Military Personnel)
* an NGB Form 89 (Proceedings of a Federal Recognition Examining Board)
* NGB Form 0122E (Departments of the Army and the Air Force National Guard Bureau Federal Recognition Orders)




CONSIDERATION OF EVIDENCE:

1.  Having prior enlisted service, the applicant completed the Reserve Officer Training Course at the New Mexico Military Institute while serving in the Simultaneous Membership Program.

2.  On 22 December 2006, he completed an NGB Form 62E (Application for Federal Recognition as an Army National Guard Officer or Warrant Officer).  His record does not contain an NGB Form 89 showing a Federal Recognition Board (FRB) was held by the INARNG to determine if the applicant was qualified to be awarded Federal recognition.  

3.  Orders 017-018 issued by Joint Force Headquarters - Indiana on 17 January 2007 show he and was initially appointed as a 2LT in the INARNG and granted him temporary Federal recognition on 22 December 2006.  Accordingly, he executed the appropriate Oaths of Office on NGB Form 337 and DA Form 71.

4.  There is no indication in the applicant's records that he was granted permanent Federal recognition for his initial appointment.

5.  An NGB Form 89 shows that on 30 September 2009, a FRB 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.

6.  On 30 September 2009, he executed the appropriate Oaths of Office on NGB Form 337 and DA Form 71.

7.  Orders 328-1002 issued by Joint Force Headquarters - Indiana on 22 November 2009 show he was reappointed as a 2LT in the INARNG and granted temporary Federal recognition on 30 September 2009.  

8.  On 30 April 2010, NGB Special Orders Number 83 AR were published extending Federal recognition to the applicant for the purpose of initial appointment as a 2LT effective 30 September 2009 (The date he was granted temporary Federal recognition for the second time).

9.  In the processing of this case, an advisory opinion was obtained on 24 September 2010.  The NGB Personnel Policy Division Chief recommended approval of adjusting the applicant's initial appointment date as a 2LT to 22 December 2006 and promoting him to 1LT on 22 June 2008.  The advisory official opined:

	a.  The INARNG should adjust the applicant's DOR to reflect the date of the Oath of Office which was originally executed on 22 December 2006.  The applicant was appointed under the Early Commissioning Program (ECP) and participants transferred to the Control Group (Annual Training) or the Selected Reserve preceding their promotion eligibility to 1LT are not required to meet the educational requirement for promotion to 1LT.  The minimum time in grade (TIG) required by statute is 18 months.

	b.  Based on the approval of (a) above, the INARNG may promote the applicant to 1LT with an effective date  of promotion no earlier than 22 June 2008; which is 18 months after his DOR to 2LT.

	c.  National Guard Regulation (Army Regulation) 600-100 (Commissioned Officers - Federal Recognition and Related Personnel Actions ), paragraph 
8-8(a), provides "A commissioned officer must complete the minimum years of promotion service prior to being considered for promotion and Federal recognition in the higher grade.  The minimum time for promotion from 1LT to captain (CPT) is two years."  If approved, the applicant's records should be reviewed by the State to determine if he is eligible for promotion to CPT.  If approved, he may be entitled to back pay and allowances.

	d.  The State concurred with this action.

10.  On 24 September 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 did not provide a response.

11.  National Guard Regulation 600-100 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.

12.  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.

13.  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.

14.  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.

15.  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 on his initial effective date of appointment and DOR to 2LT to allow for promotion to 1LT on earliest date possible.

2.  The evidence of record shows the applicant was granted temporary Federal recognition effective 22 December 2006 upon his initial appointment in the INARNG and execution of the appropriate Oaths of Office on NGB Form 337 and DA Form 71.  At that time, his complete Federal recognition packet and allied documents should have been forwarded to The Adjutant General of the State of Indiana 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 INARNG FRB.  Based on the recommendations of the second board, NGB issued orders awarding him permanent Federal recognition effective 30 September 2009.  This administrative error denied the applicant both Federal recognition effective 22 December 2006 and promotion to 1LT 18 months later on 22 June 2008.  It may have also delayed his promotion to CPT.

4.  It is clear that an administrative error denied the applicant permanent Federal recognition effective 22 December 2006.  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 22 December 2006.

5.  Furthermore, had the applicant's Federal recognition date been correct, he would have been promoted to 1LT effective 22 June 2008.  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 22 June 2008 and to receive all back pay and allowances due as a result of correction of his initial appointment and promotion to 1LT.

6.  Additionally, the applicant's records should be reviewed by the State to determine if he is eligible for promotion to CPT.  If approved, he may be entitled to back pay and allowances.

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 Orders 328-1002 issued by Joint Force Headquarters - Indiana on 22 November 2009 to show the applicant was extended Federal recognition in the grade of 2LT for the purpose of initial appointment effective 22 December 2006
* publishing NGB Special Orders to show the applicant was extended Federal recognition in the grade of 1LT for the purpose of promotion effective 22 June 2008
* paying the applicant all back pay and allowances due as a result of these corrections
* the State of Indiana reviewing his records to determine if he is eligible for promotion to CPT
* if approved for promotion to CPT, paying the applicant 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)                                         AR20100022250





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ABCMR Record of Proceedings (cont)                                         AR20100022250



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