IN THE CASE OF:	  

		BOARD DATE:	  4 August 2011

		DOCKET NUMBER:  AR20100029335 


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 National Guard Federal Recognition order to show his initial appointment first lieutenant (1LT) date of rank reads 20 February 2007 instead of 13 July 2009.

2.  The applicant states:

   a.  he was initially appointed a 1LT in the Michigan Army National Guard (MIARNG) on 20 February 2007;
   
   b.  his appointment packet was not timely processed and his Federal recognition expired resulting in his administrative discharge from the MIARNG on 12 July 2009;
   
   c.  he was reappointed a 1LT on 13 July 2009 as a result of a Federal Recognition Board; and

   d.  he was extended permanent Federal recognition as a 1LT under National Guard Bureau (NGB) Special Orders Number 133 AR dated 22 June 2010.

3.  The applicant provides the following:

* Memorandum for Record (MFR), dated 4 December 2010
* NGB Form 89 (Proceedings of a Federal Recognition Examining Board), dated 16 February 2007 and 10 July 2009
* two NGB Forms 337 (Oaths of Office)
* two appointment orders
* Federal recognition orders
* NGB Form 23B (ARNG Retirement Points History Statement)
* three DA Forms 67-9 (Officer Evaluation Reports (OER))

CONSIDERATION OF EVIDENCE:

1.  On 20 February 2007, a Federal Recognition Board was held by the MIARNG to determine if the applicant was qualified to be awarded Federal Recognition in the rank of 1LT.  The proceedings show he was satisfactory in his physical qualifications, moral character, general and professional qualifications.

2.  On 20 February 2007, the applicant swore his oath of office.  The State of Michigan, Department of Military and Veterans Affairs, published Orders Number 051-025 showing he was appointed a 1LT in the MIARNG, Army Nurse Corps on 20 February 2007.

3.  On 12 July 2009, the applicant was honorably separated from the ARNG.

4.  On 13 July 2009, a Federal Recognition Board was held by the MIARNG to determine if the applicant was qualified to be awarded Federal Recognition in the rank of 1LT.  The proceedings indicated that the applicant was satisfactory in his physical qualifications, moral character, general and professional qualification.

5.  On 13 July 2009, he was appointed a 1LT in the Army Nurse Corps.  He also completed his oath of office on that date.

6.  Department of Military and Veterans Affairs, Lansing, Michigan, published Orders Number 295-010 on 22 October 2010.  It shows the applicant was promoted to CPT on 21 October 2010.

7.  The Departments of the Army and Air Force, NGB, published Special Orders Number 133 AR, dated 22 June 2010, granting the applicant Federal recognition in the rank of 1LT for the purpose of initial appointment on 13 July 2009.

8.  On 4 December 2010, the MIARNG, Officer Branch Noncommissioned Officer in Charge prepared an MFR indicating:

   a.  he found no evidence the applicant's initial appointment packet was ever sent to the NGB for permanent Federal recognition;
   
   b.  the AMEDD recruiting office was in the midst of a personnel change and the applicant's appointment packet was overlooked and never processed;
   
c.  while investigating his promotion eligibility it was determined he had never been extended permanent Federal recognition as a 1LT;
   
   d.  on 13 July 2009, the applicant was appointed a 1LT and no action was taken following board action and he was again overlooked; and
   
   e.  on 22 June 2010, the applicant was granted permanent Federal recognition as a 1LT effective 13 July 2009, with a date of rank of 13 January 2008.
   
9.  In the processing of this case an advisory opinion was obtained from the Chief, Personnel Division, NGB, which shows:

   a.  Based on the applicant's completion of his NGB Form 337 on 20 February 2007 and the regulatory criteria found in National Guard Regulation 600-100, paragraphs 2-2b and 2-13, recommendation was made to amend Federal Recognition Order Number 133 AR to reflect the applicant's initial appointment effective date as 1LT is 20 February 2007.
   
   b.  Having met the minimum time grade, civilian and military education requirements as of 20 February 2009, based on the regulatory criteria found in Army Regulation 135-155, paragraph 3-19, the applicant's record should be placed before a Special Selection Board (SSB) for consideration based on 2009 criteria.

	c.  The applicant should be provided all back pay and allowances that may be due as a result of corrections made.

10.  The applicant was provided a copy of the NGB advisory opinion for his comments and/or rebuttal on 24 June 2011.  He concurred on 30 June 2011.

11.  National Guard Regulation 600-100 provides procedures for processing all applications for Federal recognition.  Paragraph 2-1 states that commissioned officers of the ARNG are appointed by 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 Army National Guard of the United States if they have not already accepted such appointment.
12.  National Guard Regulation 600-100, 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.

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 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 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 a Federal Recognition Board 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 Federal Recognition Board 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 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.  Paragraph 3-19 of Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) states officers and warrant officers who have either failed of selection for promotion, or who were erroneously not considered for promotion through administrative error may be reconsidered for promotion by either a promotion advisory board or a special selection board, as appropriate. 

DISCUSSION AND CONCLUSIONS:

1.  Records show the applicant was granted temporary Federal recognition effective 20 February 2007 upon his initial appointment in the MIARNG as a 1LT. At that time his Federal recognition packet and allied documents should have been forwarded to The Adjutant General of the State of Michigan for endorsement to NGB for extension of permanent Federal recognition.  Through no fault of the applicant, this action was not taken.

2.  Subsequently, the applicant's Federal recognition packet was considered by a second MIARNG Federal Recognition Board.

3.  Based on the recommendations of the second MIARNG Federal Recognition Board, NGB issued orders awarding the applicant permanent Federal recognition effective 13 July 2009.

4.  From the foregoing, it is clear that an administrative error denied the applicant permanent Federal recognition effective 20 February 2007.

5.  Based on applicable law and regulation, the applicant is entitled to have Special Orders Number 133 AR amended to show the effective date of permanent Federal recognition in the grade of 1LT as 20 February 2007.

6.  Additionally, based on the above correction and the fact the applicant met the minimum time in grade, and the civilian and military education requirements for consideration for promotion to the next higher rank of CPT as of 20 February 2009, he should be considered for promotion to CPT by an SSB using the criteria used by the 2009 CPT Reserve Component Selection Board.

BOARD VOTE:

____X____  ____X____  ____X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined 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 amending Special Orders Number 133 AR, dated 22 June 2010, to show he was extended Federal recognition effective 20 February 2007 in the grade of 1LT.

2.  The Board further recommends the applicant be considered for promotion to CPT by a Special Selection Board under the 2009 Reserve Component Selection Board criteria, and if selected, the applicant be provided all back pay and allowances that may be due as a result of any correction made.



      __________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)                                         AR20100029335



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ABCMR Record of Proceedings (cont)                                         AR20100029335



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