IN THE CASE OF:	  

		BOARD DATE:	  10 September 2013

		DOCKET NUMBER:  AR20120022918 


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 correction of his date of rank (DOR) as a captain (CPT) in the Colorado Army National Guard (COARNG) from 19 July 2012 to 21 July 2009 and, in effect, amendment of the date he was placed on the Secretary of Defense scroll as a CPT in the ARNG.

2.  The applicant states he was accessed into the COARNG on 21 July 2009.  The State never followed through with Federal recognition for initial appointment into the COARNG.  To rectify the issue, a new Federal Recognition Board (FRB) was performed as his initial National Guard Bureau (NGB) Form 89 (Proceedings of a Federal Recognition Examining Board (FREB)) from 2009 was outside the time frame allotted by the NGB.  The new FRB was held 19 July 2012, which resulted in him receiving Federal recognition for initial appointment in the ARNG as a CPT, effective 19 July 2012.

3.  The applicant provides:

* two NGB Forms 89
* two appointment orders
* two NGB Forms 337 (Oaths of Office)
* NGB Form 62E (Application for Federal Recognition as an ARNG Officer or Warrant Officer and Appointment as a Reserve Commissioned Officer or Warrant Officer of the Army in the ARNG of the United States)
* NGB Special Orders


CONSIDERATION OF EVIDENCE:

1.  Following periods of enlisted service in the U.S. Army Reserve (USAR) and ARNG, the applicant enlisted in the Regular Army (RA) on 26 June 2003.  On 8 October 2003, he was honorably discharged from the RA for the purpose of accepting a commission in the Army.

2.  On 9 October 2003, he accepted a commission in the rank/grade of second lieutenant/O-1.  He was promoted to first lieutenant/O-2 on 9 April 2005 and to CPT/O-3 on 20 January 2007.

3.  On 30 April 2007, the applicant was honorably discharged from the RA and was to be assigned to USAR Control Group (IRR) in the rank of CPT, but there is no evidence of record to show he took a USAR Oath of Office.  An entry in the  U.S. Army Human Resources Command Soldier Management System indicates he may have declined a USAR appointment.

4.  On 21 July 2009, an FRB was held by the COARNG to determine if the applicant was qualified to be awarded Federal recognition.  The proceedings indicated the applicant was satisfactory in his physical qualifications, moral character and general qualifications.  The FRB found the applicant qualified for appointment as a CPT.  

5.  On 16 September 2009, the COARNG published Orders 259-024 appointing him as a CPT in the COARNG effective 21 July 2009.  He executed oaths of office on the same date on an NGB Form 337 and a DA Form 71 (Oath of Office - Military Personnel). 

6.  On 16 June 2009, the applicant's career manager was contacted regarding the applicant's appointment in the ARNG.  The career manager stated that since the applicant's discharge date was over 2 years prior, he would need to submit reappointment paperwork.

7.  On 19 July 2012, the applicant completed an NGB Form 62E requesting Federal recognition as a CPT with appointment as a Reserve Officer of the Army in the ARNG.

8.  On 19 July 2012, an FRB was held by the COARNG to determine if the applicant was qualified to be awarded Federal recognition.  The proceedings indicated the applicant was satisfactory in his physical qualifications, moral character, and general qualifications.  The FRB found the applicant qualified for appointment as a CPT.  

9.  On 24 July 2012, the COARNG published Orders 206-004 appointing him as a CPT in the COARNG effective 19 July 2012.  He executed an NGB Form 337 on the same day acknowledging his acceptance of the appointment. 

10.  On 8 August 2012, the NGB published Special Orders Number 285 AR extending him Federal recognition for initial appointment as a CPT effective 19 July 2012.

11.  A review of the records maintained by the U.S. Army Human Resources Command revealed there is no record of the applicant being placed on the Secretary of Defense scroll for appointment as a CPT/O-3 in the ARNG prior to 19 July 2012.

12.  Title 32, USC, section 307(d), provides that Federal recognition shall be extended to each officer of the Army Reserve who has qualified for appointment as an officer of the ARNG in his reserve grade.  

13.  Title 10, USC, section 12203, provides that appointments of Reserve officers in the grades of lieutenant colonel and below shall be made by the President.  This authority has been delegated to the Secretary of Defense via Section 1, Executive Order 13384, dated 27 July 2005.

14.  National Guard Regulation 600-100 (Commissioned Officers - Federal Recognition and Related Personnel Actions) provides procedures for processing applications for Federal recognition.

	a.  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.

	b.  Paragraph 2-2 states 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 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 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 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 FREB should be convened to consider the request again and grant another new period of temporary Federal recognition if warranted.

	d.  Paragraph 10-15b states temporary Federal recognition may be granted by an 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 FREB 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.

15.  Title 32, U.S. Code, section 308, (Federal recognition of officers:  temporary recognition) allows the Secretary of the Army to extend temporary Federal recognition as an officer of the Army National Guard to any person who has passed the examination prescribed in Title 10, U.S. Code, section 307(b), pending his or her appointment as a Reserve officer of the Army.  The statute allows for temporary Federal recognition to be extended up to a year.  The statute does not expressly prohibit extension of additional periods of temporary Federal recognition.  

16.  Title 10, U.S. Code, section 12211(b), states when an officer granted temporary Federal recognition in the ARNG is appointed in the USAR, his or her appointment date will bear the date of the temporary Federal Recognition.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his DOR to CPT and the date he was placed on the Secretary of Defense scroll as a CPT in the ARNG should be corrected to 21 July 2009 were carefully examined and determined to have merit.

2.  Without question, the failure to process the applicant's Federal recognition paperwork for his initial appointment as a CPT in the ARNG was in error and occurred through no fault of his own.  Title 10, USC, section 1552, the statutory authority for the ABCMR, gives the Board broad authority to correct Army records to remove errors or to remedy an injustice; however, the authority granted by this statute is not unlimited.

3.  The ABCMR may only correct Army records.  The Board has no authority to correct records created by the other Services or the Department of Defense.

4.  Any correction by the ABCMR must comport 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, 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 often tied.

5.  Consequently, based on the authorities cited above, the ABCMR cannot amend the date the applicant was placed on the Secretary of Defense scroll because that action goes beyond the authority of this Board.  As a result, his date of placement on the scroll must remain 19 July 2012.

6.  However, when a valid appointment has been accomplished, the Board can take action to grant an officer an earlier DOR if warranted by the facts in the case.  Based upon this guidance, and as a matter of equity, it would be appropriate to grant the applicant relief in this case by showing the applicant was granted Federal recognition as a CPT on 21 July 2009.

BOARD VOTE:

___x____  ___x____  ___x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Army National Guard and Department of the Army records of the individual concerned be corrected by:

	a.  showing an extension of temporary Federal recognition was granted and

	b.  amending NGB Special Orders Number 285 AR, dated 28 January 2013, to show he was extended Federal recognition in the rank of CPT effective 21 July 2009.



      __________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)                                         AR20120022918



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ABCMR Record of Proceedings (cont)                                         AR20120022918



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