IN THE CASE OF:	  

		BOARD DATE:	  28 June 2011

		DOCKET NUMBER:  AR20110009153 


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 his initial effective date of appointment to second lieutenant (2LT) from 15 May 2010 to 15 May 2009.

2.  The applicant states due to administrative errors, his Federal recognition orders were not published in a timely manner.  He was appointed in the New York Army National Guard (NYARNG) on 15 May 2009.  The NYARNG did not submit his packet to the National Guard Bureau (NGB) until 22 November 2010.  He received his initial appointment on 11 February 2011 with an effective date of 15 May 2010. 

3.  The applicant provides:

* NGB Special Orders Number 28 AR, dated 10 February 2011 (extension of Federal recognition)
* Orders 166-012 (NYARNG appointment order)
* his DA Form 71 (Oath of Office), dated 15 May 2009

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service, the applicant's record shows he submitted an NGB Form 62 (Application for Federal Recognition as an Army National Guard Officer) and he executed an oath of office on 15 May 2009.

2.  Orders 166-1012, issued by the Office of the Adjutant General, State of New York, Latham, NY, dated 15 June 2009, appointing him as a 2LT in the NYARNG effective 15 May 2009.  However, his records do not show he was granted Federal recognition for this initial appointment.

3.  NGB Special Orders Number 28 AR, dated 10 February 2011, extended him Federal recognition for his initial appointment as a 2LT in the NYARNG, effective 15 May 2010.

4.  On 4 May 2011, an advisory opinion obtained from the Chief of the Personnel Division, NGB.  The advisory official recommended approval of the applicant’s request to adjust his initial appointment date to 15 May 2009 and that he receive all back pay and allowances.  The official stated that due to an administrative error, the State did not submit his packet for his initial appointment until November 2010. 

5.  The applicant was provided with a copy of the advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal.  He did not respond.

6.  National Guard Regulation 600-100 (Commissioned Officers - Federal Recognition and Related Personnel Actions) provides procedures for processing applications for Federal recognition.  It states in:

	a.  Paragraph 2-1, 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, that 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.  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 Federal Recognition Examining Board (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 six 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 FREB should be convened to consider the request again and grant another new period of temporary Federal recognition if warranted.

	d.  Paragraph 10-15b, that temporary Federal recognition may be granted by a FREB 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 (ARNG Proceedings of a FREB) 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.  He was appointed as a 2LT in the NYARNG and he executed an oath of office on 15 May 2009.  At that time, his complete Federal recognition packet and allied documents should have been forwarded to The Adjutant General, New York, 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 15 May 2009.

2.  It is clear that an administrative error denied him permanent Federal recognition effective 15 May 2009.  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 15 May 2009.

3.  In view of the foregoing, he is entitled to correction of his record as recommended below.

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

	a.  amending NGB Special Orders Number 28 AR, dated 10 February 2011, to show he was extended Federal Recognition for the purpose of initial appointment in the rank of 2LT, effective 15 May 2009, and

	b.  paying to him all back pay and allowances due as a result of the above correction.



      ____________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)                                         AR20110009153



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110009153



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1