BOARD DATE:  2 July 2013

		DOCKET NUMBER:  AR20120008689 


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) in the Texas Army National Guard (TXARNG) from 15 December 2011 to 24 March 2011, with entitlement to back pay and allowances.

2.  The applicant states he signed his original DA Form 71 (Oath of Office – Military Personnel) on 24 March 2011, but through no fault of his own, his packet was not submitted to the Federal Recognition Board (FRB) at the National Guard Bureau (NGB) until 15 December 2011, after he signed a second DA Form 71.

3.  The applicant provides his DA Form 71.

CONSIDERATION OF EVIDENCE:

1.  The applicant entered active duty on 3 October 2010 and he successfully completed Officer Candidate School, as well as other training courses.  He was honorably discharged from active duty on 23 March 2011.

2.  On 24 March 2011, he executed a DA Form 71 for appointment as a Reserve commissioned officer of the Army.

3.  He attended the Infantry Basic Officer Leader Course (BOLC) from 20 June to 6 October 2011 at Fort Benning, GA, and graduated on this date.

4.  The available record does not indicate his appointment packet was forwarded through the State Adjutant General to the NGB for permanent Federal recognition.

5.  On 15 December 2011, an FRB convened by the TXARNG to consider the applicant for appointment into the ARNG.  The FRB found him professionally qualified for appointment as a 2LT in the TXARNG.

6.  On 15 December 2011, he executed a DA Form 71 as a Reserve commissioned officer of the Army as well as an NGB Form 337 (Oaths of Office) as an ARNG commissioned officer.

7.  On 15 December 2011, the TXARNG published Orders 349-1081 appointing him as a 2LT in the TXARNG, effective the same date.

8.  On 5 April 2012, NGB Special Orders Number 111 AR extended him Federal recognition for initial appointment in the ARNG with an effective date and DOR of 15 December 2011.

9.  During the processing of this case, on 21 March 2013, an advisory opinion was obtained from the Chief, Personnel Policy Division, NGB.  The advisory official recommended approval of the applicant’s request to adjust his initial appointment date to 24 March 2011, promotion to first lieutenant (1LT) effective 24 September 2012, and payment of back pay and allowances.  The advisory official stated that as a result of an administrative error, the applicant was denied proper appointment and promotion.

10.  On 30 May 2012, 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.

11.  National Guard Regulation 600-100 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 oath 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 an 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 an 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 (Proceedings of a Federal Recognition Examining Board (ARNG)) 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.

12.  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, state 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 evidence of record shows the applicant executed a DA Form 71 for appointment as a Reserve commissioned officer on 24 March 2011.  Although there is no State appointment order or an NGB Form 337 on that date, at that time his complete Federal recognition packet and allied documents should have been forwarded to The Adjutant General of the State of Texas for endorsement to the NGB for extension of permanent Federal recognition.  Through no fault of the applicant, this action was not taken.

2.  It was later discovered that he had not been extended Federal recognition for his initial appointment.  As such, he executed a DA Form 71 and an NGB Form 337 on 15 December 2011 as a 2LT in the TXARNG.  Based on this second
DA Form 71, NGB issued orders awarding him permanent Federal recognition effective 15 December 2011.  This administrative error denied him both timely Federal recognition for initial appointment and timely promotion to 1LT.

3.  It is clear that after the applicant was granted temporary Federal recognition on 24 March 2011, an administrative error denied him permanent Federal recognition effective 24 March 2011.  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 24 March 2011.

4.  Furthermore, it is also clear that had the applicant's 2LT Federal recognition date been correct, he would have been promoted to 1LT effective 24 September 2012, 18 months after his initial appointment, presuming he was fully qualified.  However, notwithstanding the favorable NGB advisory opinion to issue the applicant Federal Recognition orders for promotion to 1LT with an effective date of permanent Federal recognition in the rank of 1LT as 24 September 2012:

	a.  The ABCMR may only correct Army records.  The Board has no authority to correct records created by other Services or the Department of Defense.  Promotion to 1LT requires approval by the Secretary of Defense.

	b.  Any correction by the ABCMR must comply with other laws.  The Board may not ignore a requirement contained in, or outcome dictated by, another statute.  Typically, the ABCMR achieves this by changing an operative fact in the record and thereby making a correction in compliance with that statute.  Where officer personnel issues are involved that require approval by the Secretary of defense, the Board's hands are tied.  

	c.  Consequently, based on the authorities cited above, any correction to the applicant's promotion to 1LT would go beyond the authority of this Board.  Nevertheless, once the applicant's permanent Federal recognition is awarded by the NGB and his promotion to 1LT is processed by the proper authority, the applicant may request the Board relook or consider his DOR to 1LT. 

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:

* amending NGB Special Orders Number 111 AR, dated 5 April 2012, to show he was extended Federal recognition in the grade of 2LT effective 24 March 2011
* 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)                                         AR20120008689



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ABCMR Record of Proceedings (cont)                                         AR20120008689



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