BOARD DATE:	23 May 2013

		DOCKET NUMBER:  AR20130005087 


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 the effective date of his Federal Recognition (FEDREC) as a second lieutenant (2LT) in the New York Army National Guard (NYARNG) be corrected to show 28 July 2011.

2.  The applicant states that due to administrative error his permanent FEDREC orders were not published in a timely manner.  His initial appointment in the NYARNG was effective 28 July 2011.  A request for initial appointment FEDREC was not submitted until November 2012.  His Federal Recognition orders were issued on 19 December 2012, with an effective date of 10 December 2012.

3.  The applicant provides:

* DA Form 71 (Oath of Office - Military Personnel)
* National Guard Bureau (NGB) Form 337 (Oaths of Office)
* Officer Candidate School Graduation Diploma
* Orders 272-1047, NYARNG, dated 29 September 2011
* Special Orders 427 AR, Departments of the Army and Air Force National Guard Bureau, dated 19 December 2012
* Memorandum for Record, NYARNG, Subject:  Extension of Temporary Federal Recognition (FEDREC), dated 10 December 2012
* Memorandum, NYARNG, Subject:  Expiration of Federal Recognition, dated 23 January 2012



CONSIDERATION OF EVIDENCE:

1.  The applicant signed the Oath of Office accepting appointment as a 2LT in the NYARNG on 28 July 2011.  

2.  On 29 September 2011, the Office of the Adjutant General, NYARNG published Orders 272-1047 appointing the applicant as a 2LT in the ARNG effective 28 July 2011.  The order further states that temporary FEDREC was granted and would expire on 28 July 2012.

3.  Special Orders 427 AR, Departments of the Army and the Air Force National Guard Bureau, dated 19 December 2012 show the applicant was granted initial appointment FEDREC as a 2LT effective 10 December 2012.  

4.  A 10 December 2012, Headquarters, NYARNG, memorandum includes a request for an extension of the applicant's temporary FEDREC due to an administrative error that was no fault of the applicant.  The memorandum further shows that his FEDREC packet was not properly processed and the extension of the temporary FEDREC was requested.  

5.  A 25 January 2013, Headquarters, NYARNG, memorandum indicates that as his temporary FEDREC had expired his appointment date had been adjusted to 10 December 2012 and that in order to correct his appointment date he had to submit a request to the ABCMR.

6.  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 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 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 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the effective date of the order granting him FEDREC as a 2LT in the NYARNG should be corrected to show 28 July 2011.

2.  The evidence shows he signed the Oath of Office accepting appointment as a 2LT in the NYARNG on 28 July 2011.  On 29 September 2011, the Office of the Adjutant General, NYARNG published Orders 272-1047 appointing the applicant as a 2LT in the Army National Guard effective 28 July 2011.  The order further states that temporary FEDREC was granted and would expire on 28 July 2012.

3.  It was later discovered that due to an administrative error he had not been extended Federal recognition for his initial appointment.  His FEDREC in the grade of 2LT was adjusted to 10 December 2012.  

4.  It is clear that an administrative error denied him permanent Federal recognition effective 28 July 2011.  Based on applicable law and regulation, he is entitled to have his FEDREC orders amended to show the effective date of permanent FEDREC recognition in the rank of 2LT as 28 July 2011.

5.  The applicant should also be entitled to receive all back pay and allowances as a result of correction of his initial FEDREC date.


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 State Army National Guard and Department of the Army records of the individual concerned be corrected by:

* amending Special Orders Number 427 AR, dated 19 December 2012, to show he was extended FEDREC in the grade of 2LT effective 
28 July 2011 
* 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)                                         AR20120006029



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