BOARD DATE:	  9 July 2013

		DOCKET NUMBER:  AR20130004587


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, in effect:

* an adjustment of his initial effective date and date of rank (DOR), upon his appointment to the rank of second lieutenant (2LT), from 15 December 2012 to 8 May 2010
* Federal recognition of his initial appointment to 2LT
* promotion (with Federal recognition) to the rank of first lieutenant (1LT), effective 8 November 2011 
* restoration of back pay and allowances

2.  The applicant states he was appointed on 8 May 2010 and he completed the Basic Officer Leader Course (BOLC) on 3 June 2011.  He states he should have been promoted to 1LT on 8 November 2011; therefore, he is requesting his rank be adjusted accordingly, and payment of back pay for the months of November 2011 to the present.

3.  The applicant provides:

* Orders 144-901, issued by the Adjutant General's Department, Ohio Army National Guard (OHARNG), dated 24 May 2010
* DA Form 71 (Oath of Office), dated 8 May 2010
* Orders 225-933, issued by the Adjutant General's Department, OHARNG, dated 13 August 2010
* Orders 313-933, issued by the Adjutant General's Department, OHARNG, dated 9 November 2011
* Promotion memorandum, issued by National Guard Bureau (NGB), Arlington, VA, dated 14 May 2012
* Special Orders Number 173 AR, issued by the NGB, dated 14 May 2012
* Special Orders Number 262 AR, issued by the NGB, dated 23 July 2012
* Orders 307-1164, issued by the Adjutant General's Department, OHARNG, dated 2 November 2012
* Orders 032-921, issued by the Adjutant General's Department, OHARNG, dated 1 February 2013
* Orders 032-922, issued by the Adjutant General's Department, OHARNG, dated 1 February 2013
* Duty qualification memorandum, issued by the Adjutant General's Department, OHARNG, dated 7 February 2013

CONSIDERATION OF EVIDENCE:

1.  On 8 May 2010, following prior enlisted service, the applicant was appointed a Reserve commissioned officer in the Army Military Intelligence (MI) branch as a 2LT.  On this same date, he executed an oath of office.

2.  Orders 167-003, issued by the OHARNG on 16 June 2010, appointed him as a 2LT in the OHARNG, effective 8 May 2010.  His record does not contain documentation that indicates his appointment packet was forwarded through the State Adjutant General to the NGB for permanent Federal recognition.

3.  He attended the MI BOLC at Fort Huachuca, AZ, from 2 February through 
3 June 2011, and graduated on this date.

4.  Orders 313-933, issued by the OHARNG on 9 November 2011, promoted him to 1LT effective 8 November 2011.  On 14 May 2012, the NGB published a promotion memorandum that announced his promotion to 1LT in the OHARNG, effective 8 November 2011.

5.  Special Orders Number 173 AR, issued by the NGB on 14 May 2012, extended him Federal recognition in the rank of 1LT; however, Special Orders Number 262 AR, issued by the NGB on 23 July 2012, revoked that portion of Special Orders Number 173 AR pertaining to the extension of Federal recognition for the applicant's promotion to 1LT.

6.  Orders 032-922, issued by the OHARNG on 1 February 2013, again appointed him as a 2LT in the OHARNG, effective 15 December 2012.  

7.  On 1 May 2012, the NGB published an appointment memorandum announcing his appointment as a Reserve commissioned officer of the Army, effective 15 December 2012, in the rank of 2LT.  

8.  Special Orders Number 113 AR, issued by the NGB on 1 May 2013 extended him initial Federal recognition in the rank of 2LT, effective 15 December 2012.

9.  On 26 April 2013, the NGB published an advisory opinion in support of the applicant's request for relief, wherein the Chief, Personnel Policy Division, NGB, recommended approval of the applicant’s request to adjust his initial appointment date to 8 May 2010, and promoting him to 1LT on 8 November 2011, and restoration of back pay and allowances.   The applicant was provided a copy of this advisory opinion, and on or about 1 May 2013, he acknowledged concurrence. 

10.  National Guard Regulation (NGR) 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 FRB (Federal Recognition Board) 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 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.

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 in pertinent part 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 was granted temporary Federal recognition effective 8 May 2010, upon his initial appointment in the OHARNG, and he executed an oath of office.  At that time, his complete Federal recognition packet and allied documents should have been forwarded to The Adjutant General of the State of Ohio 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 oath of office on 
15 December 2012.  Based on this second date, NGB issued orders awarding him permanent Federal recognition effective 15 December 2012.  This administrative error denied him both timely Federal recognition for initial appointment and timely promotion to 1LT.

3.  It is clear that, after he was granted temporary Federal recognition on 8 May 2010, an administrative error denied him permanent Federal recognition effective 8 May 2010.  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 8 May 2010.

4.  Furthermore, it is also clear that had his Federal recognition date been correct, he would have been promoted to 1LT effective 8 November 2011, 18 months after his initial appointment, presuming he was otherwise fully qualified.  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 8 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 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:

________  ________  ________  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 Department of the Army records of the individual concerned be corrected by:

* amending Federal Recognition Special Orders Number 113 AR, dated 1 May 2013, to show he was extended Federal Recognition in the grade of 2LT effective 8 May 2010 
* paying to him 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 his promotion to the rank of 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)                                         AR20110001447



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ABCMR Record of Proceedings (cont)                                         AR20130004587



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