BOARD DATE:	  1 December 2011

		DOCKET NUMBER:  AR20110002232 


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 date of rank (DOR) as a captain (CPT) to 8 October 2009
* Payment of back pay and allowances as a result of this correction

2.  The applicant states:

* He was considered by a Federal Recognition Board (FRB) for direct appointment as a first lieutenant (1LT) in the Utah Army National Guard (UTARNG) on 8 October 2008
* His appointment packet was forwarded to the National Guard Bureau (NGB) on 14 October 2008
* Federal recognition for initial appointment normally takes 4 to 6 months
* His packet was dropped off the system during a system upgrade
* His packet was re-uploaded into the system in January 2009, and took another 4 to 6 months to receive Federal recognition
* Federal recognition was ultimately received on 4 March 2010, with an incorrect date of rank (DOR)
* With his appointment as a Judge Advocate General (JAG) officer, he received constructive service credit for his education
* With an adjusted DOR of 8 October 2007, he would have been eligible for promotion to CPT on 8 October 2009
* Except for his delayed Federal recognition for initial appointment, his promotion packet would have been considered by the November 2009 FRB for promotion to CPT
* His packet was considered for promotion in April 2010 and he was promoted to CPT effective 9 August 2010
* The mishap caused him to miss out on an earlier promotion, time in grade, and loss of pay from February to August 2010
* During this period he was deployed as a 1LT to Korea
* None of the errors were his fault and he should not be penalized for these administrative errors 

3.  The applicant provides:

* NGB Federal Recognition Special Orders Number 40 AR (initial appointment)
* NGB Federal Recognition Special Orders Number 174 AR (promotion to CPT)
* NGB Federal Recognition Special Orders Number 45 AR (amendment of initial appointment DOR)
* NGB Federal Recognition Special Orders Number 46 AR (second amendment of initial appointment DOR)
* Orders 283-016 (UTARNG appointment order)
* DA Form 71 (Oath of Office)

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service, the applicant's records show he submitted an NGB Form 62 (Application for Federal Recognition as an Army National Guard Officer) on 23 April 2008 for appointment as a JAG officer in the rank of CPT.

2.  On 8 October 2008, an FRB was held by the UTARNG to determine if the applicant was qualified to be awarded Federal recognition.  The proceedings indicated the applicant was satisfactory in his physical qualifications, moral character and general qualifications.  The FRB found the applicant qualified for appointment as a 1LT.  It also indicated the applicant is being appointed in an authorized position at the higher grade.

3.  On 9 October 2008, the UTARNG published Orders 283-016 appointing him as a 1LT in the UTARNG effective 8 October 2008 and with a DOR as 8 October 2007 (constructive service credit for education).  He executed an oath of office on the same date (8 October 2008). 

4.  The original appointment package was uploaded on a computer system for the NGB.  However, due to a computer error, the packet was lost and had to be resubmitted. 
5.  He entered active duty on 8 February 2009 and completed the Judge Advocate Officer Basic Course.  He was honorably released from active duty on 26 July 2009.  

6.  On 4 March 2010, NGB published Special Orders Number 40 AR extending him Federal recognition for permanent initial appointment as a 1LT effective 8 October 2008, with a DOR as 8 October 200 (the file copy of the order shows the year is cut off).

7.  On 11 March 2010, NGB published Special Orders Number 45 AR amending the orders that extended him Federal recognition for permanent initial appointment as a 1LT to show the DOR as 8 October 2008 instead of 8 October 2007.

8.  On 12 March 2010, NGB published Special Orders Number 46 AR amending the orders that extended him Federal recognition for permanent initial appointment as a 1LT to show the DOR as 8 October 2007 instead of 8 October 2008.

9.  On 12 August 2010, NGB published Special Orders Number 174 AR extending him Federal recognition for promotion to CPT effective 9 August 2010.

10.  On 10 December 2010, he entered active duty in support of Operation Enduring Freedom.  He subsequently served in Djibouti from 1 January 2011 to 3 April 2011.

11.  An advisory opinion was obtained on 20 October 2011 in the processing of this case.  The Chief of the Personnel Division, NGB, recommended approval of the applicant’s request to amend his CPT promotion effective date to 10 January 2010 and that he receive all back pay and allowances.  He stated:

	a.  The initial delay in processing his Federal recognition packet was due to no fault of his.  Once the error discovered, his initial appointment was processed on 4 March 2008 with an effective date of 8 October 2008. 

	b.  His DOR was amended to 1 October 2007 due to constructive service credit for his direct appointment that was not previously applied.  He was issued an amendment on 12 March 2010.

	c.  He completed the military education requirements on 6 May 2009 when he graduated from the Judge Advocate Officer Basic Course.  Based on his 7 October 2007 DOR, he met the time in grade requirements for promotion to CPT on 8 October 2009.
	d.  As a result of the delay in the initial appointment, his packet did not go before the FRB until November 2009.  It was rejected because his initial appointment had not been processed.  His packet was resubmitted in April 2010 and he was ultimately promoted to CPT on 9 August 2010.

	e.  The State confirmed that his promotion was a unit vacancy promotion.  By law (Title 10, U.S. Code, section 14308), the effective date of promotion of a Reserve officer who is extended Federal recognition in the higher grade in the ARNG under section 307 or 310 of Title 32 is the date on which such Federal recognition in that grade is extended.  Additionally, the Reserve Officer Personnel Management Act states the effective date of promotion and DOR of an officer who is promoted under a position vacancy is the date the Chief, NGB, extends Federal recognition.  It is not the date of appointment into that position. 

	f.  Even though his promotion was for a unit vacancy, consideration should be given to the end result, the applicant was promoted late due to an administrative error.  It is reasonable to state that he could have been promoted to CPT earlier had it not been for his initial appointment packet being rejected as a result of a computer glitch.

	g.  The proceedings of the State FRB on 8 October 2008 show he was recommended for promotion.  This indicates the State's intent was to promote him at that time.  Also, the State was proactive in resubmitting his packet once the error was discovered.  The NGB opined that the applicant's records should be amended to show a DOR and effective date of promotion of 8 January 2010.

12.  The applicant concurred. 

13.  National Guard Regulation (NGR) 600-100 provides procedures for processing applications for Federal Recognition.  

	a.  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.  

	b.  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. 
	c.  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. 

	d.  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 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.

	e.  Paragraph 8-8 states a commissioned officer must complete the minimum time in grade in years prior to being considered for promotion and Federal recognition in the higher grade.  The minimum time in grade from 1LT to CPT is 2 years.  The minimum military education requirement for promotion from 1LT to CPT is completion of any officer basic course or equivalent. 

	f.  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.

14.  Title 10, USC, section 14308(f) (Effective date of promotion after Federal Recognition), states the effective date of a promotion of a reserve commissioned officer of the Army or the Air Force who is extended Federal recognition in the next higher grade in the Army National Guard or the Air National Guard under section 307 or 310 of title 32 shall be the date on which such Federal recognition in that grade is so extended. 




DISCUSSION AND CONCLUSIONS:

1.  He was appointed as a 1LT in the UTARNG and executed an oath of office on 8 October 2008.  At that time, his complete Federal recognition packet and allied documents should have been forwarded to The Adjutant General, Utah, for endorsement to NGB for extension of permanent Federal recognition.  Through no fault of his, this action was not taken.  This administrative error denied him Federal recognition effective 8 October 2008.

2.  He completed the Officer Basic Course on 6 May 2009 and he was ultimately awarded Federal recognition for this appointment on 4 March 2010, effective 8 October 2008 and with a DOR of 8 October 2007 (DOR adjusted due to his constructive service credit).  Had his initial appointment not been administratively delayed, he would have been able to compete for a vacancy promotion as early as 8 October 2009, and he could have been promoted within 90 days (normal processing time) on 8 January 2010.  

3.  It is clear that an administrative error denied him permanent Federal recognition effective 8 January 2010.  As a matter of equity, he is entitled to have his Federal recognition orders amended to show the effective date of permanent Federal recognition in the rank of CPT of 8 January 2010.

4.  The ABCMR cannot amend Federal Recognition orders if they are based on an appointment.  An appointment is a Secretary of Defense record.  However, the ABCMR can correct his DOR in the Army records.  This should serve the same effect going forward and place him in the same position for future promotion consideration.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x_____  __x_____  ___x_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army and the Army National Guard records of the individual concerned be corrected by showing his DOR to CPT as 8 January 2010.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to a DOR of 8 October 2009.



      _______ _ 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)                                         AR20110002232



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ABCMR Record of Proceedings (cont)                                         AR20110002232



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