IN THE CASE OF:	  

		BOARD DATE:	  10 September 2013

		DOCKET NUMBER:  AR20130003077 


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 his initial appointment date and date of rank (DOR) to second lieutenant (2LT) be changed from 15 December 2011 to 6 May 2011.  He also requests his promotion effective date and DOR to first lieutenant (1LT) be backdated to 6 November 2012, the date he was initially eligible for promotion.

2.  The applicant states a Federal recognition order was never processed by the Ohio Army National Guard (OHARNG) officer personnel office.  He was only recently informed of this error and told that his promotion to 1LT would be held up until his initial Federal recognition order was published.

3.  The applicant provides:

* National Guard Bureau (NGB) 337 (Oaths of Office), dated 6 May 2011
* State of Ohio, Adjutant General's Department Orders 146-015, dated 
26 May 2011
* DA Form 1059 (Service School Academic Report), dated 28 October 2011
* a memorandum, dated 4 September 2012, from 174th Air Defense Artillery Brigade, Forward 12
* State of Ohio, Adjutant General's Department Orders 286-1115, dated 
12 October 2012
* a memorandum, dated 10 November 2012, from the State of Ohio, Adjutant General's Department to the Army Board for Correction of Military Records (ABCMR) 
* his letter, dated 13 November 2012
* 
NGB Special Orders Number 25 AR, dated 28 January 2013
* his Annual Records Review with a run date of 4 September 2012
* his college transcripts issued on 20 May 2011

CONSIDERATION OF EVIDENCE:

1.  He previously served 3 years, 3 months, and 21 days in the OHARNG in an enlisted status.

2.  An NGB 337, dated 6 May 2011, shows he was commissioned a 2LT in the OHARNG and granted temporary Federal recognition on 6 May 2011.

3.  A DA Form 71 (oath of Office), dated 6 May 2011, shows he was commissioned a 2LT in the U.S. Army Reserve (USAR) on 6 May 2011.

4.  A DA Form 1059, dated 28 October 2011, shows he attended the Military Intelligence Basic Leaders Course from 29 June to 28 October 2011.

5.  A second DA Form 71, dated 15 December 2011, shows he was commissioned a 2LT in the USAR on 15 December 2011.

6.  A memorandum, dated 4 September 2012, from the 174th Air Defense Artillery Brigade, Forward 12 recommended the applicant for promotion to 1LT.

7.  State of Ohio, Adjutant General's Department Orders 286-1115, dated 
12 October 2012, promoted him to 1LT with an effective date and DOR of 
6 November 2012.  The orders state the effective date of promotion in the Reserve of the Army and corresponding DOR would be the date the Chief, NGB extends Federal Recognition of state promotion.

8.  In a memorandum, dated 10 November 2012, from the State of Ohio, Adjutant General's Department to the ABCMR from the Personnel Branch Officer certified that the applicant's initial appointment packet was delayed in submission to the NGB.  

	a.  His appointment packet was returned with administrative errors on 17 July 2011.  Once all discrepancies were corrected, his temporary Federal recognition had expired.  The applicant was fully eligible for promotion to 1LT on 6 November 2012.  If his officer appointment package had been processed in a timely manner, his promotion would have been processed without delay.  

	b.  The Personnel Branch Officer requested the applicant's initial appointment be backdated to 6 May 2011 and that he be promoted and extended Federal recognition to 1LT effective 6 November 2012 without further delay.

9.  NGB Special Orders 25 AR, dated 28 January 2013, extended him permanent Federal recognition for his initial appointment as a 2LT, effective 15 December 2011.  

10.  An advisory opinion, dated 23 May 2013, was received from the NGB in the processing of this case.  The Chief, Personnel Policy Division recommended:

	a.  Approval of the change in his initial appointment and Federal recognition to 2LT to 6 May 2011.

	b.  The OHARNG submitted the applicant's packet for promotion to 1LT with a promotion effective date and a DOR of 6 November 2012.

	c.  Pay all back pay and allowances associated with this correction.

11.  On 21 June 2013, the applicant was provided a copy of the advisory opinion for his comment.  However, no response has been received from him.

12.  Authority granted to the Secretaries of the Military Departments in Secretary of Defense Memorandum, subject:  Redelegation of Authority under Executive Order 12396, dated 9 December 1982, 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 redelegation 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.

13.  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 Federal Recognition Examination Board (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 six 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.

14.  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.  

15.  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 contention that his Federal recognition and initial appointment date and DOR to 2LT should be changed from 15 December 2011 to 6 May 2011 was carefully considered.

2.  It is clear that administrative errors delayed his Federal recognition for initial appointment to 2LT effective 6 May 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 6 May 2011.  His effective date of appointment and DOR will be 6 May 2011.

3.  Therefore, his record should be corrected to show he received an extension of temporary Federal recognition and NGB Federal Recognition Special Orders Number 25 AR, dated 28 January 2013, should be amended to show he was extended Federal recognition in the rank of 2LT effective 6 May 2011.

4.  The applicant's contention that his promotion effective date and DOR to 1LT should be backdated to 6 November 2012, the date he was initially eligible for promotion, was also carefully considered.

5.  Although the NGB recommended approval of backdating the applicant's promotion effective date to 6 November 2012, the promotion effective date is established by the Secretary of Defense, the date on which the scroll list is approved.  In accordance with the Reserve Officer Personnel Management Act (ROPMA) the effective date of promotion and the date of rank for an officer will be the date the Chief, NGB extends Federal recognition, based on the approved scroll list from the Secretary of Defense.  

6.  The only way that the date the applicant was granted Federal recognition to 1LT could be changed would be to show that the Secretary of Defense approved his promotion on an earlier date.  However, the ABCMR has no jurisdiction over Department of Defense records and therefore could not make that type of correction.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ____X____  ___X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial 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 Federal Recognition Special Orders Number 25 AR, dated 28 January 2013, to show he was extended Federal recognition in the rank of 2LT effective 6 May 2011.

2.  The Board further determined that the evidence presented was 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 his promotion effective date and DOR 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)                                         AR20130003077



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ABCMR Record of Proceedings (cont)                                         AR20130003077



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