IN THE CASE OF:	   

		BOARD DATE:	  8 January 2013

		DOCKET NUMBER:  AR20120021254 


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 14 May 2011 to 17 May 2009. 

2.  The applicant states upon appointment in the Hawaii Army National Guard (HIARNG), his packet was mishandled by the office that handles officers' records.  He was appointed in the HIARNG on 17 May 2009 but his packet did not go forward to the National Guard Bureau (NGB) for Federal recognition until May 2011. 

3.  The applicant provides:

* DA Form 1059 (Service School Academic Evaluation Report)
* U.S. Army Reserve appointment memorandum
* NGB Form 89 (Proceedings of a Federal Recognition Examining Board) 
* Orders 159-010, issued by the HIARNG on 8 June 2011
* Orders 180-014, issued by the HIARNG on 29 June 2009
* NGB Form 337 (Oaths of Office), dated 17 May 2009
* Second NGB Form 337, dated 8 May 2011
* Orders 159-010, state appointment order
* NGB Special Orders Number 266 AR, dated 24 October 2011

CONSIDERATION OF EVIDENCE:

1.  On 17 May 2009, he executed an NGB Form 337 as an ARNG commissioned officer.

2.  On 29 June 2009, the HIARNG published Orders 180-014 appointing him as a 2LT in the HIARNG, effective 17 May 2009.  

3.  He attended the Basic Officer Leader Course (BOLC) from 10 July 2009 to 21 August 2009 at Fort Gordon, 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 8 May 2011, he executed a second NGB Form 337 as an ARNG commissioned officer.

6.  On 14 May 2011, a Federal Recognition Board (FRB) convened by the HIARNG to consider the applicant for appointment into the ARNG.  The FRB found him professionally qualified for appointment as a 2LT in the HIARNG.

7.  On 8 June 2011, the HIARNG published Orders 159-010 appointing him as a 2LT in the HIARNG, effective 14 May 2011.  

8.  On 24 October 2011, NGB Special Orders Number 266 AR extended him Federal recognition for initial appointment in the ARNG with an effective date and DOR of 14 May 2011.

9.  During the processing of this case, on 5 June 2012, 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 17 May 2009, promotion to first lieutenant (1LT) effective 17 November 2010, 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.  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 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 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 an NGB Form 337 for appointment in the HIARNG on 17 May 2009.  At that time, his complete Federal recognition packet and allied documents should have been forwarded to The Adjutant General of the State of Hawaii 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 second NGB Form 337 on 8 May 2011 as a 2LT in the HIARNG.  Based on this second oath of office, NGB issued orders awarding him permanent Federal recognition effective 14 May 2011.  This administrative error denied him both timely Federal recognition for initial appointment and timely promotion to 1LT.  

3.  It is clear that an administrative error denied him permanent Federal recognition effective 17 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 17 May 2009.

4.  Furthermore, had the applicant's Federal recognition date been correct, he would have been promoted to 1LT effective 17 November 2010, 18 months after his initial appointment, presuming he was fully qualified.  Therefore, he is entitled to issuance of Federal Recognition orders for promotion to 1LT with an effective date of permanent Federal recognition in the rank of 1LT as 17 November 2010.

5.  The applicant should also be entitled to receive all back pay and allowances as a result of correction of his initial appointment and promotion 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 all Department of the Army records of the individual concerned be corrected by:

* amending Federal Recognition Special Orders Number 266 AR, dated 24 October 2011, to show he was extended Federal recognition in the grade of 2LT effective 17 May 2009 
* issuing Federal Recognition Special Orders to show he was extended Federal recognition for promotion to 1LT effective and with a date of rank of 17 November 2010
* paying to 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)                                         AR20120021254





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ABCMR Record of Proceedings (cont)                                         AR20120021254



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