IN THE CASE OF:	  

		BOARD DATE:	  10 January 2012

		DOCKET NUMBER:  AR20110010730 


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 and date of rank (DOR) to second lieutenant (2LT) from 15 August 2010 to 
13 December 2008.

2.  The applicant states he graduated from the University of Texas at El Paso on December 13, 2008 and he received his commission as a second lieutenant
(2LT)/O-1 on the same day from the Reserve Officers' Training Corps (ROTC) program.  He contends his Federal recognition orders should be corrected to show his initial appointment date effective 13 December 2008.  He has been a 2LT for 29 months and this problem is preventing him from getting promoted to first lieutenant (1LT)/O-2.

3.  The applicant provides 

* National Guard Bureau (NGB) 337 (Oaths of Office), dated 13 December 2008
* Fort Sill (FS) Form 1059 (Basic Officer Leader Course (BOLC) II Evaluation Report), dated 26 March 2009
* DA Form 1059 (Service School Academic Evaluation Report), dated
24 June 2009
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 24 June 2009
* NGB Special Orders Number 17 AR, dated 28 January 2011
* University of Texas at El Paso transcript


CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he enlisted in the Army National Guard (ARNG) under the ROTC/Simultaneous Membership Program on 21 December 2007.

2.  On 13 December 2008, he executed an NGB 337 in the Texas ARNG (TXARNG).  His records do not show he was granted Federal recognition for this initial appointment.

3.  He successfully completed the BOLC, Phase II at Fort Sill, OK from
8-27 February 2009.

4.  He successfully completed the Quartermaster BOLC, Phase 3 at Fort Lee, VA from 6 April through 24 June 2009.

5.  Orders 258-1020, issued by the Texas Military Forces, ARNG, Adjutant General's Department, Austin, EX, dated 15 September 2010, appointed him as a 2LT in the TXARNG, effective 15 August 2010.

6.  NGB Special Orders Number 17 AR, dated 28 January 2011, extended him Federal recognition for his initial appointment as a 2LT in the TXARNG, effective 15 August 2010.

7.  In the processing of this case, on 18 August 2011, an advisory opinion was 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 13 December 2008, promotion to 1LT as early as 13 June 2010 but no later than 13 December 2010, and payment of back pay and allowances.

8.  On 18 August 2011, a copy of the advisory opinion was provided to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He did not respond. 

9.  National Guard Regulation 600-100 (Commissioned Officers - Federal Recognition and Related Personnel Actions) 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 oaths 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 Federal Recognition Board (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.

	d.  Paragraph 10-15b states that temporary Federal recognition may be granted by a 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.

10.  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, states 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 applicant was appointed as a 2LT in the TXARNG and he executed an NGB 337 on 13 December 2008.  At that time, his complete Federal recognition packet and allied documents should have been forwarded to The Adjutant General, Texas, for endorsement to the NGB for extension of permanent Federal recognition.  Through no fault of his, this action was not taken.

2.  It appears an administrative error denied him permanent Federal recognition effective 13 December 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 13 December 2008.

3.  Furthermore, had his Federal recognition date been correct, he would have been eligible for promotion to 1LT effective 13 June 2010 based on attaining
18 months time in grade (TIG) and completion of the BOLC.  Therefore, he should be promoted to 1LT and to have Federal recognition orders issued to grant him Federal recognition for promotion to 1LT with an effective date and date of rank of 13 June 2010, with entitlement to back pay and allowances.

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 17 AR, dated 15 September 2010, to show he was extended Federal Recognition for the purpose of initial appointment in the rank of 2LT, effective 13 December 2008;


	b.  issuing Federal Recognition orders to show he was extended Federal recognition for promotion to 1LT effective and with a date of rank of 
13 June 2010; and

	c.  paying to him all back pay and allowances due as a result of the above 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)                                         AR20110010730



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ABCMR Record of Proceedings (cont)                                         AR20110010730



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