IN THE CASE OF:

		BOARD DATE:  6 December 2012

		DOCKET NUMBER:  AR20120001191 


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 that Federal recognition (FEDREC) as a Judge Advocate General's Corps (JA) first lieutenant be backdated to 3 May 2009 and that he receive any promotion consideration to which such back-dating would entitle him. 

2.  The applicant states he was pre-qualified by the state board but, through no fault of his own, his FEDREC package was never submitted to the National Guard Bureau (NGB).  

3.  The applicant provides a copy of the request by the Hawaii Army National Guard (HIARNG) for his FEDREC and a memorandum from the HIARNG stating that, although the original of his oath of office cannot be located, other documents indicate that 3 May 2009 is the correct date.

CONSIDERATION OF EVIDENCE:

1.  On 3 May 2009, a HIARNG FEDREC board determined the applicant was temporarily qualified for appointment as a first lieutenant in the JA.  The HIARNG extended him temporary FEDREC and forwarded his packet to the NGB.  In a letter to the applicant dated 5 March 2009, the Chief of Reserve Judge Advocate Recruiting notified the applicant that he had to complete the Judge Advocate Officer Basic Course (JAOBC) within one year of his appointment or be subject to termination of his federal recognition.  In a letter dated 19 May 2009, the Chief of Reserve Judge Advocate Recruiting granted the applicant two years to complete JAOBC as an exception to policy.
2.  The applicant attempted to enroll in a JAOBC course that began in February of 2010.  However, that course was filled and he could not enroll until July of 2010.  The applicant’s temporary federal recognition expired on 2 May 2010.  The HIARNG and the NGB did not act to grant him another period of temporary FEDREC.

3.  On 29 September 2010, the applicant completed JAOBC.

4.  NGB Special Orders Number 269 AR, dated 27 October 2011, show the applicant was extended federal recognition for the purpose of initial appointment in the rank of first lieutenant, effective 1 April 2011, with an adjusted date of rank of 1 April 2010.

5.  On 3 October 2012, the applicant was promoted to CPT in the U.S. Army Reserve with an effective date of 28 August 2012.  The record is not clear whether this promotion resulted from a DA mandatory board or was the result of a position vacancy promotion.

6.  During the processing of this case an advisory opinion was obtained from the NGB, Chief, Personnel Policy Division.  The advisory official recommended approval of the applicant's request.  He noted the available documents supported the conclusion that 3 May 2009 was the correct date of rank, that the applicant had completed the Judge Advocate Basic Course within the prescribed time limit, and that the HIARNG concurred.

7.  On 31 January 2012, 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.

8.  Title 32, U.S. Code, section 308, provides that the Secretary of the Army (acting through the NGB) may authorize extension of temporary federal recognition to an officer of the Army National Guard. Temporary recognition so extended may be withdrawn at any time.  If the officer does not receive permanent Federal Recognition upon appointment as a reserve officer in the same grade within one year, the temporary Federal Recognition automatically terminates.  There is no provision under the law to grant a second period of temporary federal recognition if the one-year period expires.  If Federal Recognition is granted during this time, the date of appointment and date of rank become the date upon which the officer was awarded temporary Federal Recognition.



9.  National Guard Regulation 600-100 (Commissioned Officers and Related Personnel Actions) prescribes policies and procedures governing the appointment, assignment, temporary and permanent FEDREC, reassignment, and other personnel issues related to commissioned officers of the ARNG.  It states commissioned officers of the ARNG are appointed by the several States.  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, as provided by law.  Appointment of Reserve officers in the grade of LTC and below shall be made by the President.  This authority has been delegated by Executive Order 12396.

10.  National Guard Regulation 600-100, chapter 8, provides for promotion of officers.  It states, in pertinent part, that the promotion of officers in the ARNG is a function of the State, and as in original appointments, a commissioned officer promoted by State authorities has a State status in the higher grade under which to function.  However, to be extended FEDREC in the higher grade, the officer must have satisfied the promotion requirements.  Chapter 8 of this regulation states a commissioned officer must complete the required minimum years of promotion service prior to being considered for promotion and FEDREC Federal in the higher grade.  Promotion from 1LT to CPT requires a minimum of 2 years time in grade.

11.  Authority granted to the Secretaries of the Military Departments in Secretary of Defense Memorandum, dated 9 December 1982, Subject:  Re-delegation of Authority under Executive Order 12396, to appoint officers under section 624 of Title 10, U.S. Code, in the grades of O-2 and O-3 was rescinded effective 1 July 2005 based on advice from the Department of Justice that prohibits re-delegation below the Secretary of Defense of the President’s authority to appoint military officers.  All military officer appointments under section 12203 of Title 10, U.S. Code, including original appointments, in the Reserve of the Army, Reserve of the Air Force, Naval Reserve, and Marine Corps Reserve, not previously approved by 30 June 2005, shall also be submitted to the Secretary of Defense.

12.  Army Regulation 135-100, paragraph 3-12, provides for appointment grade and date of rank for Reserve Judge Advocate officers.  In addition to constructive service credit for advanced education (law school), Table 3-5 allows for the award of credit for commissioned service (other than as a commissioned warrant officer) in an active status, while serving in any component of the military services. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his appointment FEDREC should be dated 3 May 2009.  It appears his contention has merit.  

2.  The HIARNG and the NGB support the applicant's contention.  The NGB opinion to grant the applicant a DOR of 3 May 2009 does not comport with the law as it pertains to appointment date and date of rank.  The Judge Advocate General’s Corps granted the applicant an exception to policy to allow him 2 years to complete JAOBC.  In order to obtain FEDREC, the applicant had to complete JAOBC within one year of his original appointment.  Since he did not, his temporary FEDREC was properly withdrawn notwithstanding the exception to policy.  His appointment date was properly set for the date on which he received FEDREC and was appointed in the Reserve and as a member of the Army National Guard of the United States.  Since his appointment in the Reserve was a function requiring approval of the Secretary of Defense, the Board cannot correct the date of rank that flowed from that action.  An action by the Secretary of Defense is not a record the Board can correct; the Board is limited to correcting Army records.  

3.  The effective date of applicant's FEDREC was properly established as 1 April 2011 when his appointment was scrolled and submitted to and signed by the Secretary of Defense.  Further, his date of rank was properly adjusted to 1 April 2010 to reflect his one year of commissioned service during his temporary FEDREC, from 3 May 2009 to 2 May 2010.

4.  Though his DOR is properly set at 1 April 2010, the result is inequitable under the circumstances.  The applicant attempted to do all that was required to receive permanent FEDREC before 2 May 2010, but through no fault of his own was unable to do so.  

5.  The HIARNG and the NGB could have extended him another period of temporary FEDREC beginning on 3 May 2010.  Had this been accomplished, the applicant’s DOR upon his 1 April 2011 appointment would have been backdated under the law to 3 May 2010.  Further, with the addition of credit for his one-year or active service from 3 May 2009 to 2 May 2010, his date of rank would have been adjusted to 3 May 2009.

6.  In light of the foregoing, the applicant should be granted relief.  



BOARD VOTE:

____X___  ____X___  ___X__ _  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ____ ___  _________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:
 
	a.  showing the applicant executed an oath of office for appointment as a 1LT in the HIARNG as a 1LT Judge Advocate on 3 May 2010.

	b.  showing the NGB extended him temporary FEDREC effective 3 May 2010.

	c.  Correcting his 1 April 2011 FEDREC orders to show an effective date of 3 May 2010 and an adjusted DOR of 3 May 2009.

2.  The applicant’s records should be audited in light of the above correction and, if he would have been considered for promotion by a DA Mandatory Board prior to 28 August 2012, he should be afforded promotion consideration by a special selection board using the selection criteria applicable to that board.  



      
                                                                     _______ _  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)                                         AR20120001191



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ABCMR Record of Proceedings (cont)                                         AR20120001191



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