IN THE CASE OF:	  

		BOARD DATE:	  23 July 2013

		DOCKET NUMBER:  AR20130002444


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:

   a.  correction of her initial second lieutenant (2LT/O-1) date of rank (DOR) and Federal recognition (FEDREC) date to show 22 May 2010; 
   
   b.  promotion to first lieutenant (1LT/O-2) effective on and with a DOR of
22 November 2011; and

   c.  all back pay and allowances due as a result of these corrections.

2.  The applicant states:

* submission of her initial appointment packet to the National Guard Bureau (NGB) was delayed for over 2 years through no fault of her own
* the Ohio State Headquarters failed to process her initial appointment packet, lost it, and thereby delayed her Federal Recognition as an officer and promotion to 1LT in a reasonable and timely manner
* she was fully eligible for promotion to 1LT on 22 November 2011
* she has suffered an extreme loss in wages 
* her career will be affected in an unforeseen and detrimental manner without adjusting the date of her initial FEDREC

3.  The applicant provides the indexed list of documents as indicated on her application.


CONSIDERATION OF EVIDENCE:

1.  The applicant's military record shows that after having prior enlisted service, she was appointed a Reserve commissioned officer as a 2LT on 22 May 2010 in the Aviation Branch.  She executed her oath of office as a 2LT on 22 May 2010.

2.  There is no evidence the applicant received permanent Federal recognition as a 2LT from NGB within the 6-month period required by Army National Guard/Army regulations.  As a result, her temporary Federal recognition expired.

3.  The applicant's Army Military Human Resource Record (AMHRR) includes two DA Forms 1059 (Service School Academic Evaluation Report) which show her completion of the following courses as indicated:

* Initial Entry Rotary Wing Aviator Common Course (IERW-CC) – achieved course standards on 16 November 2011
* Aviation Qualification Course – exceeded course standards on 31 March 2012

4.  The applicant's AMHRR includes an NGB Form 62E (Application for Federal Recognition as an Army National Guard Officer or Warrant Officer and Appointment as a Reserve Commissioned Officer or Warrant Officer of the Army in the Army National Guard of the United States) dated 15 December 2011.

5.  On 15 December 2011, she executed a second 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.

6.  NGB Special Orders Number 399 AR, dated 15 November 2012, awarded the applicant permanent Federal recognition for initial appointment to the grade of 2LT effective 15 December 2011.

7.  In the processing of this case an advisory opinion was obtained from the Chief, Personnel Division, NGB, wherein, he recommended approval of the applicant's request to backdate her initial 2LT appointment to “23” May 2010, to promote her to 1LT effective on and with a date of rank of “23” November 2011, and provide her all back pay and allowances associated with this correction, based on the following information:

   a.  OHARNG Memorandum, dated 25 January 2013 shows the State certifies the initial appointment packet for the applicant was delayed in submission to the NGB for publication of permanent FEDREC orders as required National Guard Regulation (NGR) 600-100.  The State further recommended her initial 2LT appointment be backdated to 22 May 2010 and her promotion to 1LT effective 23 November 2011.
   
   b.  Based on NGR Regulation 600-100, chapter 2, section 2-13, 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 Reserve commissioned officer of the Army.  Such recognition may be withdrawn at any time.  If not sooner withdrawn or replaced by the granting of permanent FEDREC, temporary FEDREC will be automatically terminate 6 months after the effective date of State appointment (Title 32, U.S. Code., Section 308).  However, should the initial period of temporary FEDREC expire due to administrative processing delay, through no fault of the applicant, a subsequent FRB should be convened to consider the request again and grant a new period of temporary FEDREC from 6 months to 1 year.

   c.  The Soldier signed a DA Form 71 on 23 May 2010.  NGR 600-100, chapter 2, paragraph 2-2(b), states the effective date of FEDREC for original appointment is that date on which the commissioned officer executes the oath of office in the State.  In addition, ARNG-HRH Policy Memorandum Number 12-032, effective 9 October 2009, Basic Officer Course-Branch (BOLC-B) Phases 1 and 2 were repositioned within Flight School XXI, and were completed prior to the IERW-CC and Airframe Tack Courses of instruction.  This enabled aviation 2LTs entering flight school after 9 October 2009, and who have 18 months time in grade, to be considered for promotion prior to the completion of flight school.  Therefore, the applicant should have been promoted to 1LT with a promotion effective date and date of rank of 23 November 2011.
   
8.  The applicant was provided a copy of the NGB advisory opinion for her comments and/or rebuttal on 30 May 2013.  No response has been received.

9.  NGR 600-100 (Commissioned Officers - Federal Recognition and Related Personnel Actions) provides procedures for processing all applications for Federal recognition. 

   a.  Paragraph 2-1 states commissioned officers of the ARNG are appointed by 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 Army National Guard 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 oaths of office in the State.  Paragraph 2-3a states 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 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 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 oaths 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 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.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), paragraph 2-1 states an officer in the grade of 2LT will be considered for promotion without review by a selection board.  The officer's records will be screened to determine eligibility for promotion to the next higher grade far enough in advance to permit promotion on the date the promotion service is completed in compliance with table 2-1 or table 2-3 of this regulation.

   a.  Table 2-1 states the minimum time in grade as a 2LT for promotion to 1LT is 2 years.
   
   b.  Table 2-2 states 2LT's must complete a resident officer basic course to be eligible for promotion to 1LT.
   
11.  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 22 May 2010.  Although there is no State appointment order or an NGB Form 337 on that date, at that time her 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 she had not been extended Federal recognition for her initial appointment.  As such, she 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 her permanent Federal recognition effective 15 December 2011.  This administrative error denied her 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 22 May 2010, an administrative error denied her permanent Federal recognition effective 24 March 2011.  Based on applicable law and regulation, she is entitled to have her Special Orders Number 399 AR amended to show her effective date of permanent Federal recognition in the rank of 2LT as 22 May 2010.

4.  Furthermore, it is also clear that had the applicant's 2LT Federal recognition date been correct, she would have been promoted to 1LT effective 22 November 2011, 18 months after her initial appointment, presuming she 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 22 November 2011:

	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 her promotion to 1LT is processed by the proper authority, the applicant may request the Board relook or consider her DOR to 1LT. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x___  ___x____  ___x____  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 partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

* amending NGB Special Orders Number 399 AR, dated 15 November 2012, to show she was extended Federal recognition in the grade of 2LT effective 22 May 2010
* paying her all back pay and allowances due as a result of these corrections


2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to her promotion to 1LT.



      ____________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)                                         AR20130002444





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ABCMR Record of Proceedings (cont)                                         AR20130002444



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