IN THE CASE OF:
BOARD DATE: 26 May 2011
DOCKET NUMBER: AR20100028992
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 records to show his initial appointment in the Alaska Army National Guard (AKARNG) was 5 December 2008 vice 5 December 2009.
2. The applicant states, in effect, due to an administrative oversight he was not appointed in the AKARNG on 5 December 2008. Instead, due to his temporary Federal recognition expiring and an approaching deployment, his initial appointment was changed to 5 December 2009 with the understanding he could summit a request for corrective action at a later date.
3. The applicant provides:
* National Guard Bureau (NGB) Form 89 (Proceedings of a Federal Recognition Examining Board)
* two NGB Forms 337 (Oaths of Office)
* NGB Special Orders Number 80 AR
* AKARNG memorandum of appointment of a Federal Recognition Board (FRB)
* AKARNG Orders 347-009
CONSIDERATION OF EVIDENCE:
1. Having prior AKARNG service, the applicant's records show he was appointed as a major (MAJ) in the AKARNG effective 5 December 2008 and he executed the oaths of office on the same date.
2. There is no indication in his records that he was extended permanent Federal recognition for this initial appointment.
3. He executed the second oaths of office on 5 December 2009.
4. On 27 April 2010, NGB published Special Orders Number 80 AR extending him permanent Federal recognition effective 5 December 2009 for his initial appointment in the ARNG.
5. In the processing of this case, an advisory opinion was provided by an official at the Personnel Policy Division, NGB, on 21 April 2011. The official recommended approval of the applicant's request to adjust his initial appointment date and stated Special Orders Number 80 AR should be amended to reflect the applicant's initial appointment of 5 December 2008 and that he should receive any back pay and allowances due as a result of the correction. The official also stated the applicant executed the oaths of office on 5 December 2008 and according to an AKARNG email, he was not extended Federal recognition due to an administrative error through no fault of his own. The official stated the State concurred with the recommendation. The applicant was provided a copy of this advisory opinion; however, he did not respond.
6. National Guard Regulation 600-100 (Commissioned Officers Federal Recognition and Related Personnel Actions), paragraph 2-3, states 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 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 applicant, a subsequent FRB should be convened to consider the request again and grant a new period of temporary Federal recognition if warranted. The 2009 National Defense Authorization Act, section 513, extended the period of temporary Federal recognition from 6 months to 1 year.
7. National Guard Regulation 600-100, paragraph 2-4, states 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.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows the applicant was granted temporary Federal recognition effective 5 December 2008 upon his initial appointment in the AKARNG and execution of the oaths of office. At that time, his complete Federal recognition packet and allied documents should have been forwarded to The Adjutant General, Alaska, for endorsement to NGB for extension of permanent Federal recognition. Due to an administrative error on the part of the State, this action was not taken. This administrative error denied the applicant Federal recognition effective 5 December 2009.
2. Subsequently, he executed the second oaths of office on 5 December 2009, he was found qualified by an FRB, and NGB issued orders awarding him permanent Federal recognition effective 5 December 2009.
3. It is clear he was denied permanent Federal recognition effective 5 December 2008 through no fault of his own. 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 MAJ as 5 December 2008.
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 all Department of the Army records of the individual concerned be corrected by:
a. voiding the applicant's NGB Form 337, dated 5 December 2009, and all resulting orders and special orders and declaring them to be of no force or effect and
b. showing he was appointed as a MAJ in the AKARNG and extended Federal recognition effective 5 December 2008 with adjustment of pay and allowances, if applicable.
____________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.
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