BOARD DATE:	  4 May 2011

		DOCKET NUMBER:  AR20110004584 


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, in effect, correction of the effective date of his initial appointment to captain (CPT)/O-3 on National Guard Bureau (NGB) Special Orders Number 273 AR, dated 9 December 2010 to show he was extended Federal recognition on 19 August 2009 instead of 19 August 2010.  He also requests correction of his record to show his unit vacancy promotion to major (MAJ)/O-4 was effective 19 August 2010.  He further requests all back pay and allowances due as a result of these corrections.

2.  He states that due to an administrative error his permanent Federal recognition orders do not have the correct effective date.  His initial appointment in the New York Army National Guard (NYARNG) was effective 19 August 2009.  Therefore, his temporary Federal recognition was valid for 1 year.  However, a request for an initial appointment Federal recognition order was not submitted to the NGB until 23 August 2010, well after expiration of his temporary Federal recognition.  On 9 December 2010, he received his initial appointment Federal recognition order from the NGB with an effective date of 19 August 2010 instead of 19 August 2009.

3.  He provides copies of:

* an NGB 89 (Proceedings of a Federal Recognition Examining Board (FREB)), dated 19 August 2009
* orders appointing him as an officer in the NYARNG, effective 19 August 2009


* orders announcing extension of Federal recognition, effective 19 August 2010
* orders promoting him to MAJ, effective 18 August 2010

CONSIDERATION OF EVIDENCE:

1.  The applicant served as a commissioned officer in the Regular Army from 31 May 1997 until he was honorably released from active duty on 1 October 2006.  He was promoted to captain (CPT)/O-3 on 1 December 2000.

2.  Effective 19 August 2009, the applicant accepted appointment as a CPT in the NYARNG.  On that date, he was considered by an FREB and the board recommended extending him Federal recognition.

3.  Orders 258-1060, issued by the Office of the Adjutant General, State of New York, dated 15 September 2009, show the effective date of his appointment was 19 August 2009 and that he was granted temporary Federal recognition which would expire on 19 August 2010.  However, a corrected copy of Orders 258-1060 changed his effective date of appointment to 19 August 2010.

4.  On 19 August 2010, an FREB confirmed he was being promoted in an authorized position in the grade of MAJ and found him fully qualified for Federal recognition.

5.  Orders 232-1004, issued by the Office of the Adjutant General, Joint Force Headquarters, Latham, NY, dated 20 August 2010, as amended by Orders
343-1045, issued by the same headquarters, dated 9 December 2010, promoted him to MAJ effective 19 August 2010.  The orders stated he would not be paid in the new grade until Federal recognition was confirmed and his effective date of promotion would be the effective date on the permanent Federal recognition orders.

6.  Special Orders Number 273 AR, issued by the NGB, dated 9 December 2010, announced extension of Federal recognition to the applicant in the grade of CPT effective 19 August 2010 for the purpose of initial appointment.

7.  Special Orders Number 84 AR, issued by the NGB on 12 April 2011, announced extension of Federal recognition to him in the grade of MAJ effective 8 April 2011 for the purpose of promotion.


8.  During the processing of this case, on 11 March 2011, an advisory opinion was obtained from the Chief, Personnel Policy Division, NGB.  After careful review, the advisory official recommended approval of the applicant's request to adjust his initial appointment date to 19 August 2009, to have him go before a special selection board (SSB) for promotion to MAJ with an effective date of rank not to precede 19 August 2010, and to pay all back pay and allowances due as a result of the correction.

9.  On 14 March 2011, 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.  He did not respond.

10.  National Guard Regulation 600-100 (Commissioned Officers - Federal Recognition and Related Personnel Actions) provides procedures for processing all applications for Federal recognition.

	a.  Paragraph 2-1 states commissioned officers of the Army National Guard 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 Army National Guard 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 oaths of office in the State.  Paragraph 2-3a states 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 temporary Federal recognition may be extended to an officer who has been appointed in the Army National Guard of a State and found to be qualified by an FREB 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.  The National Defense Authorization Act for fiscal year 2008 extended the maximum period of temporary Federal recognition to 1 year.  

	d.  Paragraph 10-15b states temporary Federal recognition may be granted by an FREB 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 Army National Guard.  The FREB 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant was selected for promotion to MAJ and he was found to be fully qualified for Federal recognition in that grade.  He was duly promoted to MAJ by the NYARNG effective 19 August 2010.

2.  Orders in his record show he did not receive permanent Federal recognition for his initial appointment as a CPT until 19 August 2010, a full year after an FREB recommended such recognition.  Considering the NYARNG attempted to promote him to MAJ to fill a unit vacancy on 19 August 2010 when he had not yet received permanent Federal recognition as a CPT, it appears an administrative error caused the delay.

3.  Notwithstanding the NGB advisory opinion, in this case it would be appropriate to correct his record to show:

* he received permanent Federal recognition in the grade of CPT effective 19 August 2009
* he was promoted to MAJ effective 19 August 2010 with a date of rank of 19 August 2010
* he received permanent Federal recognition in the grade of MAJ effective 19 August 2010

4.  He should also receive all back pay and allowances he is due as a result of these corrections


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 state Army National Guard records and the Department of the Army records of the individual concerned be corrected by:

* showing he received permanent Federal recognition in the grade of CPT effective 19 August 2009
* showing he was promoted to MAJ effective 19 August 2010 
* showing his date of rank for MAJ is 19 August 2010 
* showing he received permanent Federal recognition in the grade of MAJ effective 19 August 2010
* paying 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)                                         AR20110004584



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ABCMR Record of Proceedings (cont)                                         AR20110004584



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