IN THE CASE OF:	  

		BOARD DATE:	  26 July 2011

		DOCKET NUMBER:  AR20110001447 


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:

* adjustment of initial effective date of appointment and date of rank (DOR) to second lieutenant (2LT) from 25 March 2010 to 10 May 2008
* promotion to first lieutenant (1LT)
* restoration of back pay and allowances

2.  The applicant states he was appointed as a 2LT in the Indiana Army National Guard (INARNG) on 10 May 2008.  However, due to an administrative error his temporary Federal recognition expired and he was required to be reappointed on 25 March 2010.  The error occurred through no fault of his. 

3.  The applicant provides:

* Orders 163-1009 (first appointment orders)
* First DA Form 71 (Oath of Office)
* Orders 141-1029 (second appointment orders)
* Second DA Form 71
* National Guard Bureau (NGB) Form 337 (Oaths of Office)
* Special Orders Number 193 AR
* DA Form 1059 (Service School Academic Evaluation Report)




CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service, the applicant's records show he was found professionally qualified for appointment as a 2LT in the INARNG. 

2.  On 10 May 2008, he executed an oath of office in the INARNG and on 11 June 2008, Joint Force Headquarters, INARNG published Orders 163-1009 appointing him as a 2LT in the INARNG, effective 10 May 2008.

3.  The available record does not indicate his appointment packet was forwarded through the State Adjutant General to the NGB for permanent federal recognition.

4.  He attended the Basic Officer Leader Course (BOLC) from 29 September 2008 to 14 January 2009 at Fort Benning, GA and graduated on this date.

5.  On 25 March 2010, he executed a second oath of office and on 21 May 2010, Joint Force Headquarters, INARNG published Orders 141-1029 again appointing him as a 2LT in the INARNG effective 25 March 2010.

6.  On 2 September 2010, NGB Special Orders Number 193 AR extended him Federal recognition for initial appointment in the ARNG with an effective date and DOR of 25 March 2010.

7.  An advisory opinion was obtained on 21 January 2011 in the processing of this case.  The Chief of the Personnel Division, NGB, recommended approval of the applicant’s request to adjust his initial appointment date to 10 May 2008, promotion to 1LT on 11 November 2009, and restoration of back pay and allowances.   The applicant was provided a copy of this advisory opinion; however, he did not respond. 

8.  National Guard Regulation (NGR) 600-100 provides procedures for processing 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.  

	a.  Paragraph 2-2 states that the effective date of Federal recognition for original appointment is the date on which the commissioned officer executes the oath of office in the State. 

	b.  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. 

	c.  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 FRB (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 FRB should be convened to consider the request again and grant another new period of temporary Federal recognition if warranted.

	d.  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 oath 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.

9.  NGB 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 2LTs on the Reserve Active Status List (RASL) to be promoted to 1LT with a minimum of 18 months time in grade (TIG) and completion of the BOLC if otherwise qualified." 

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant was granted temporary Federal recognition effective 10 May 2008 upon his initial appointment in the INARNG and execution of the oath of office.  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 the NGB for extension of permanent Federal recognition.  Through no fault of the applicant, this action was not taken. 

2.  It was later discovered that he had not been extended Federal recognition for his initial appointment.  As such, he executed a second oath of office on 25 March 2010.  Based on this second date, NGB issued orders awarding him permanent Federal recognition effective 25 March 2010.  This administrative error denied him both timely Federal recognition for initial appointment and timely promotion to 1LT.

3.  It is clear that an administrative error denied him permanent Federal recognition effective 10 May 2008.  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 10 May 2008.

4.  Furthermore, had the applicant's Federal recognition date been correct, he would have been promoted to 1LT effective 11 November 2009.  Therefore, the applicant 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 as 11 November 2009 and to receive back pay and allowances as a result of correction of his initial appointment and promotion to 1LT.

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:

* amending Federal Recognition Special Orders Number 193 AR, dated 2 September 2010, to show he was extended Federal Recognition in the grade of 2LT effective 10 May 2008 
* issuing Federal Recognition Special Orders to show he was extended Federal recognition for promotion to 1LT effective and with a date of rank of 11 November 2009
* paying to him 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)                                         AR20110001447





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ABCMR Record of Proceedings (cont)                                         AR20110001447



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