IN THE CASE OF:	  

		BOARD DATE:	  8 September 2011

		DOCKET NUMBER:  AR20110005214 


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 initial appointment as a second lieutenant (2LT)/O-1 in the New York Army National Guard National (NYARNG) to show 20 March 2009 instead of 20 March 2010
* promotion to first lieutenant (1LT/O-2) effective 21 October 2010

2.  He states an administrative error by the NYARNG delayed publication of his National Guard Bureau (NGB) Federal Recognition order.  He was initially appointed in the NYARNG on 20 March 2009, but his State did not submit his initial request for Federal Recognition orders to NGB until 22 November 2010.  He states he received his Federal Recognition orders on 11 February 2011 with an appointment date of 20 March 2010.  He completed his Infantry Basic Officer Leadership Course (IBOLC) on 21 October 2010 and, with a corrected initial appointment date, he would have a date of rank (DOR) to 1LT of 21 October 2010.

3.  He provides:

* NYARNG Orders 106-1019, dated 25 March 2009
* NYARNG Orders 106-1019 [Corrected Copy], dated 25 March 2009
* NGB Form 337 (Oaths of Office), dated 20 March 2009
* DA Form 71 (Oath of Office – Military Personnel), dated 20 March 2009
* 
DA Form 1059 (Service School Academic Evaluation Report), dated 
18 October 2010
* NGB Federal Recognition Orders Number 28 AR, dated 10 February 2011
* Email from the NYARNG, dated 11 March 2011

CONSIDERATION OF EVIDENCE:

1.  With prior enlisted service, the applicant was appointed in the ARNG as a 2LT and he took the oath of office on 20 March 2009.  The NYARNG established his DOR as 20 March 2009.  He was granted temporary Federal recognition.

2.  A DA Form 1059, dated 18 October 2010, shows that he successfully completed the IBOLC on 21 October 2010.

3.  Permanent Federal recognition was never received for the applicant's initial; appointment.  The NYARNG published a new appointment order establishing the applicant as a 2LT effective 20 March 2010.  Federal recognition was granted effective 20 March 2010.

4.  An email, dated 11 March 2011, shows the NYARNG submitted supporting documents to the NGB.  The email indicates once his Federal Recognition order was corrected, it was the intent of the NYARNG to promote the applicant to 1LT with 18 months time in grade.

5.  An advisory opinion was obtained from the Chief of the Personnel Division of the National Guard Bureau.  The Chief of the Personnel Division recommended approval of the applicant's request.  The Chief of the Personnel Division indicated that the applicant’s records be corrected to show:

* initial appointment date of 20 March 2009
* promotion to the rank of 1LT effective 18 October 2010
* payment of all back pay and allowances due as a result of the correction

6.  The Chief of the Personnel Division continued that the applicant signed an oath of office on 20 March 2009.  The NYARNG published orders appointing him to the rank of 2LT effective 20 March 2009.  In March 2010, the State discovered that he did not receive Federal Recognition for his initial appointment to 2LT.  The NYARNG then amended his State orders appointing him to 2LT effective 20 March 2010.  His Federal Recognition order dated 10 February 2011 shows his initial appointment to the rank of 2LT effective 20 March 2010.

7.  The applicant was provided a copy of the advisory opinion for review and comment.  The applicant did not reply to the advisory opinion.
8.  National Guard Regulation 600-100 (Commissioned Officers - Federal Recognition and Related Personnel Actions) prescribes policies and procedures governing the appointment, temporary Federal recognition, Federal recognition, reassignment, transfer between States, branch transfers, area of concentration designation, utilization, branch detail, attachment, and separation of commissioned officers of the ARNG.

	a.  Chapter 2 provides that in order for an officer to be concurrently appointed as a Reserve officer of the Army, the State action must be Federally recognized.  Federal recognition is the process which ensures that officers appointed by the States meet the qualifications required for service in the Federal Armed Forces.

      (1)  Upon appointment in the ARNG of a State and subscribing to an oath of office, an officer has a State status under which to function.  Such individuals acquire a Federal status when they are federally recognized and appointed as a Reserve of the Army.

      (2)  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.
      
   b.  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 the 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 a new period of temporary Federal recognition if warranted.

9.  NGB Memorandum, subject:  Reduction in the Time in Grade (TIG) Requirements for Promotion of Reserve Component Officers to 1LT (NGB-ARH Policy Memorandum 08-035), dated 25 November 2008, states, "This policy authorizes all National Guard officers in the rank of 2LT on the Reserve Active Status List to be promoted with a minimum of 18 months TIG.  2LT's may be promoted at 18 months TIG provided they have completed the BOLC and are otherwise qualified.  The effective date will not precede 19 August 2008.



DISCUSSION AND CONCLUSIONS:

1.  Records show the applicant was granted temporary Federal recognition effective 20 March 2009 upon his initial appointment in the NYARNG as a 2LT.  At that time, his Federal recognition packet and allied documents should have been forwarded to The Adjutant General of the State of New York for endorsement to the NGB for extension of permanent Federal recognition.  Through no fault of the applicant, this action was not taken.

2.  Subsequently, the NGB issued orders extending Federal recognition for initial appointment in the grade of 2LT effective 20 March 2010.  From the foregoing, it is clear that an administrative error denied the applicant Federal recognition effective 20 March 2009.

3.  Based on applicable law and regulation, the applicant is entitled to have NGB Special Orders Number 28 AR, dated 10 February 2011 amended to show the effective date of permanent Federal recognition in the grade of 2LT as 20 March 2009.

4.  Evidence of record shows the applicant met the time-in-grade requirement for promotion to 1LT on 20 September 2010, but did not complete the IBOLC until 21 October 2010.  Therefore, he should have been promoted effective 22 October 2010, and awarded permanent Federal recognition for promotion to 1LT with an effective DOR of 22 October 2010.

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

	a.  voiding the applicant's appointment orders and 2LT Federal recognition orders, and declaring them to be of no force or effect;

	b.  showing he was appointed in the NYARNG as a 2LT, effective 20 March 2009, and granted Federal recognition that date, with all appropriate adjustment of pay and allowances; and

	c.  promoting him to 1LT with a DOR and effective date of 22 October 2010, and granted Federal recognition that date, with all appropriate adjustment of pay and allowances.

2.  The Board further determined that the evidence presented was 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 promoting to him to 1LT with a DOR and effective date of 21 October 2010, with all appropriate adjustment of pay and allowances.




      _________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)                                         AR20110005214





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ABCMR Record of Proceedings (cont)                                         AR20110005214



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