IN THE CASE OF:	   

		BOARD DATE:	  12 December 2013

		DOCKET NUMBER:  AR20130005711 


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 her records as follows: 

* adjustment of her date of rank (DOR) as a second lieutenant (2LT) from 21 August 2011 to 29 July 2010
* repayment of the recouped monies that created a debt against her

2.  The applicant states she took an oath of office for appointment in the Oregon Army National Guard (ORARNG) on 29 July 2010 and the Federal recognition packet was turned in within the allowed time.  Her packet was not timely processed by her state which resulted in documents included in her packet to expire.  The lack of Federal recognition created a debt with the Government and the debt has been recouped from her pay account since discovery in March 2011. 

3.  The applicant provides:

* Self-authored statement
* Statement from her unit Personnel Officer
* Statement from her brigade Military Personnel Technician
* Statement from the state G-1 Chief of Plans and Actions
* Statement from her Professor of Military Science
* DA Form 71 (Oath of Office - Military Personnel)
* National Guard Bureau (NGB) Form 337 (Oaths of Office)
* Orders T-10-046495, orders to active duty for training (ADT)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Special Orders (SO) Number 235 AR, initial appointment
* Multiple Leave and Earnings Statements (LES)

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the ORARNG on 4 May 2006.

2.  On 7 February 2008, she completed a DA Form 597 (Army Senior Reserve Officers' Training Corps (ROTC) Scholarship Cadet Contract).  On the same date she was promoted to the rank of cadet/sergeant (SGT)/E-5. 

3.  She attended Oregon State University from 15 September 2006 through 12 June 2010.  

4.  On 29 July 2010, her Professor of Military Science, Oregon State University, issued her a memorandum appointing her as a commissioned officer of the Army under Title 10, U.S. Code, sections 12201, 12203, 2104, 2103, and 2107.  This memorandum states:  

* she was appointed in the Quartermaster branch
* she must execute an oath of office (DA Form 71)
* the date of acceptance is 29 July 2010

5.  There are no orders in her records that show she was discharged from her enlisted status.  Likewise, her service records do not contain the below documents related to her appointment: 

* NGB Form 62 (Application for Federal Recognition as an ARNG Officer)
* Federal Recognition Board Proceedings
* State appointment orders
* Reserve or ARNG oath of office

6.  Her records contain an NGB Form 22 (Report of Separation and Record of Service) that show she was honorably discharged on 28 July 2010 for the purpose of accepting an appointment as a commissioned or warrant officer of the Army. 

7.  She submitted a DA Form 71 and an NGB Form 337, both showing she executed an oath of office on 29 July 2010.

8.  On 8 October 2010, the U.S. Army Human Resources Command (HRC) published Orders T-10-046495, ordering her to ADT at Fort Lee, VA, beginning on or about 7 November 2010.  
9.  She entered ADT on 7 November 2010 and successfully completed the Quartermaster Basic Officer Leader Course from 8 November 2010 through 11 March 2011. 

10.  On 21 August 2011, she submitted an application for Federal Recognition as an ARNG officer.  This form was staffed through/endorsed by the battalion commander, 821st Troop Command Battalion; the brigade commander, 82nd Troop Command Brigade; and the ORARNG Deputy Chief of Staff, Personnel.  

11.  On 21 August 2011, she executed an oath of office for initial appointment in the ARNG.

12.  On 15 September 2011, the ORARNG published orders 258-032 appointing her as a 2LT in the ORARNG effective 21 August 2011.  

13.  Also on 15 September 2011, the ORARNG published Orders 258-032:

* honorably discharging her as an enlisted Soldier, from the ARNG and as a Reserve of the Army, effective 28 July 2010
* appointing her in the ARNG as a 2LT, Quartermaster branch, effective     21 August 2011, with assignment to the 3670th Maintenance Company, ORARNG

14.  On 9 January 2012, the NGB published SO Number 9 AR extending her Federal recognition for initial appointment as a 2LT in the ORARNG effective 21 August 2011.  

15.  On 29 June 2012, the NGB published SO Number 235 AR extending her Federal recognition for promotion to first lieutenant (1LT) effective 29 January 2012. 

16.  On 15 January 2013, she transferred to the California ARNG (CAARNG) and on 18 March 2013, the NGB issue her SO Number 81 AR extending her Federal recognition for this transfer. 

17.  She provides a self-authored statement, dated 1 November 2012, wherein she states:

	a.  Due to an administrative processing error, her Federal recognition date was processed incorrectly.  Her Federal recognition order dated 9 January 2012 must be amended to read 29 July 2010.  She first saw the debt on her March 2011 LES.  She contacted her unit and was put in touch with Mr. S---t, a Military 
Personnel Technician.  She provided him with the LES's that showed the debt.  After some research it was concluded that her commissioning packet had been delayed due to a changeover in position.  The packet had been delayed so long that the finance department was not recognizing her as a 2LT and was recouping her pay back down to a cadet/E-5 that she previously held.  

	b.  After Mr. S---t had exhausted all of his resources he spoke with his supervisor, Mr. B-------e, G-1 office, to see if he had more visibility on the situation.  Mr. B------e looked into the situation and concluded that nothing could be resolved until her DOR was reinstated to 29 July 2010.  She then contacted an officer at the Office of the Inspector General to expedite the process and he put her in direct contact with 1LT O----a, the Personnel Officer/S-1 at brigade level.  She provided her with all of her information and the decision was made that she had to file an application with this Board to correct her DOR and have her pay reinstated.  The whole situation was not her fault. 

18.  She also provides a statement from 1LT O----a, the Personnel Officer/S-1 who states:  

	a.  Due to an administrative processing error, the applicant's Federal recognition date was processed incorrectly.  Her Federal recognition order dated 9 January 2012, must be amended to read 29 July 2010.  As the incoming S-1 for 821st Troop Command Battalion, she learned about the applicant's DOR issue and the debt collections that proceeded on 23 May 2012.  She immediately started collecting data and working with Mr. S---t, the brigade Personnel Technician.  Together, they analyzed the information and determined their course of action.  

	b.   On 20 June 2012, she and Mr. S---t sat down with a finance official of the Oregon Military Department to discuss the details of the debt collections listed on the applicant's LES's.  The official indicated that in 2011, when the applicant attended the Basic Course, she had not been discharged from the ORARNG as an enlisted Soldier and was still loaded in SIDPERS as a SGT/E-5.  The meeting concluded that the differences in the amounts of pay from E5 to 2LT were the debt collections on her LES's.  The meeting also concluded that those debts would be paid back to the applicant if the Board's decision was favorable and was approved.  Once that occurred, an audit would follow to ensure all the debt collections were resolved and the Soldier received her back pay.

	c.  She also spoke with the ORARNG Deputy Inspector General concerning her situation.  He indicated that there was a process error involving her commissioning packet and due to this reason she needed to submit an application to this Board.  She also discussed this process error with Mr. S----t and he indicated that the original memorandum signed by the Professor of Military Science and its accompanying DA Form 71, dated 29 July 2010, should have been the date used on the Federal recognition packet.

19.  She also submits a statement from Mr. S---t, the Military Personnel Technician, who states: 

	a.  The applicant contracted as an ROTC cadet at Western Oregon University (sister program to Oregon State University ROTC) on 7 February 2008 and was simultaneously a member of the ORARNG assigned to 3670th Maintenance Company in Clackamas, OR.  She graduated with a Bachelor of Science degree on 12 June 2010 and then attended her Leader Development Assessment Course (LDAC) during June and July of 2010.  Upon completion of her course she was commissioned as a 2LT in the USAR on 29 July 2010 and her oath of office was administered and signed by an officer.  

	b.  She then started the process to be discharged from the ORARNG as an enlisted Soldier so she could be assessed as a 2LT.  She completed the NGB Form 337, Oath of Office, on 29 July 2010.  He understood that during this time frame the outgoing Officer Strength Manager was in transition to another job and the incoming Officer Strength Manager was not aware of this accession packet, thus leading to the packet sitting stagnant for a while.  When the incoming Officer Strength Manager became aware of her packet it was discovered that the applicant needed to get a medical waiver due to an injury and subsequent surgery on her knee.  Her medical waiver was approved on 5 May 2011. 

	c.  On 18 May 2011, by email, he received a copy of the applicant's accession packet.  On 13 June 2011, he reviewed the packet and sent it to an officer of the 821st Troop Command Battalion to gather the remaining required documents and for signatures by the battalion commander.  It was at this time it was discovered that she had not been discharged from the ORARNG as an enlisted Soldier and was still loaded in SIDPERS as a SGT/E5.

	d.  Her accession packet was finalized and sent to Mr. B------e at State on 14 September 2011.  She (the applicant) was discharged from the ORARNG as an enlisted Soldier and assessed as a 2LT with a date of 29 July 2010 and an effective date of 21 August 2011, the date that was on the DA Form 71.  Had her packet been processed in a timely manner after completion of the LDAC in 2010, her Federal Recognition order would have been processed with an effective date of 29 July 2010.  

20.  She further provides a statement from Mr. B------e, at the state G-1, who states: 
	a.  The applicant received a commission as a 2LT in the USAR on 29 July 2010 through the ROTC program at Oregon State University.  Unfortunately, at that time she was not apparently eligible for appointment in the ARNG due to at least one deficiency in her ARNG appointment packet, specifically the lack of an approved commissioning physical.  She also needed a medical waiver in order to qualify for appointment in the ARNG.

	b.  In July 2011, he became aware of her situation.  Obviously for the preceding year she had continued service as an enlisted member of the ORARNG while her unit worked with her to complete her ARNG appointment packet.  Under the provisions of various regulations, including National Guard Regulation (NGR) 600-100 (Commissioned Officers - Federal Recognition and Related Personnel Actions), she should have been discharged from enlisted status the day prior to accepting her commission in the USAR.  Once her ARNG appointment packet was complete she signed a DA Form 71 and NGB Form 337 effective 21 August 2011.  He believes the Chief, NGB, may not backdate Federal Recognition Orders (FRO) that appoint officers further than one year prior to date of FRO publication; therefore, NGB could not possibly match her initial appointment to the USAR effective July 2010.  Besides, she did not present medical qualifications for appointment in the ARNG until May 2011.  In August 2011, when she signed her Oaths of Office with the ARNG, all parties understood that she would need to engage with the Army Board for Correction of Military Records if she desired to backdate her ARNG appointment date further than one year.

	c.  On 15 September 2011, she was discharged from her ARNG enlisted status effective 28 July 2010, and appointed as a 2LT in the ARNG effective      21 August 2011.  In the finance system this action generated a debt collection for her pay received during the period 28 July 2010-21 August 2011.  In January 2012, that same order was amended in an effort to halt the collection, and her enlisted separation date was changed to 20 August 2011.  This action had the effect of reducing the amount of collection, but a debt remains in the amount of difference between pay grades E-5 and O-1 for that period of time.  That period of collection includes over four months active duty pay while she attended Quartermaster Basic Officer Leader Course.  

	d.  He opines that the applicant is not personally at fault in this unfortunate situation; he has seen no evidence to indicate negligence on her part.  He also opines she should be awarded relief from her debt.  One means to accomplish relief is through administrative processes that amend her date of Federal Recognition in the ARNG to 29 July 2010.

21.  In the processing of this case, an advisory opinion was obtained on 6 August 2013 from the NGB.  An NGB official recommended amendment of the applicant's Federal recognition SO Number 9 AR, dated 9 January 2012 to reflect her initial appointment date as 29 July 2010.  The official stated: 

	a.  The applicant states that her initial appointment commissioning was delayed due to an administrative error at the ORARNG State Headquarters.  She also indicates that because her packet was not submitted in a timely manner, the finance department did not recognize her rank as a 2LT and recouped her pay to her previous rank of a cadet/E-5; she discovered the error on 30 March 2011.  She signed the NGB Form 337, Oaths of Office, on 29 July 2010 and believes that her original oath date should be the DOR reflected on her military records.

	b.  In accordance with (lAW) memoranda from the ORARNG, dated 8 June, 18 July, and 28 August 2012, the State indicates the applicant started the process to be discharged from the ORARNG as an enlisted Soldier so she could be assessed as a 2LT.  The State also describes this error occurred in transition of the Officer Strength Manager to another job and the incoming Officer Strength Manager was not aware of this accession packet, and this delay was of no fault of the Soldier.  Therefore, ORARNG certifies the initial appointment packet for the Soldier was delayed in submission to the NGB for publication of permanent Federal Recognition as required by National Guard Regulation ((NGR) 600-100, 15 April 1994), and requests she be granted full relief of appointment backdated to her original date on 29 July 2010 as a 2LT.

	c.   lAW NGR 600-100, dated 15 April 1994, 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 an FRB pending final determination of eligibility and appointment as a 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 Federal recognition, temporary Federal recognition will automatically terminate six months after the effective date of State appointment (Title 32, U.S. Code, section 308).  However, should the initial period of temporary Federal recognition expire due to administrative processing delays, through no fault of the applicant, a subsequent FRB should be convened to consider the request again and grant another new period of temporary Federal recognition if warranted."  The National Defense Authorization Act, Section 513, extends the period that members of the National Guard may be granted temporary Federal recognition from six months to one year.

	d.  The applicant signed an oath of office (NGB Form 337) on 29 July 2010.  lAW NGR 600-100, chapter 2, paragraph 2-2 (b), "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."  Therefore, the applicant should have the initial appointment date and date of rank as a 2LT on 29 July 2010.  The State concurs with this recommendation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant participated in an ROTC scholarship program with a stipulation she would be appointed as a Reserve commissioned officer upon completion of this program.  She graduated with a Bachelor of Science degree on 12 June 2010 and then attended her LDAC during June and July of 2010.  Upon completion of her course she executed an oath of office in the USAR as well as in the ARNG on 29 July 2010.  

2.  Although an NGB Form 22 was issued discharging her from her enlisted status on 28 July 2010 and although she executed an oath of office on 29 July 2010, no discharge orders or appointment orders were issued by the ARNG.  At that time she was not apparently eligible for appointment in the ARNG due to at least one deficiency in her ARNG appointment packet, specifically the lack of an approved commissioning physical.  She also needed a medical waiver in order to qualify for appointment in the ARNG.  She did not present medical qualifications for appointment in the ARNG until May 2011.

3.  She continued service as a member of the ORARNG while her unit worked with her to complete her ARNG appointment packet.  By regulation (NGR 600-200), she should have been discharged from an enlisted status the day prior to accepting her commission in the USAR.  In any case, when her ARNG appointment packet was complete, she signed a DA Form 71 and NGB Form 337 effective 21 August 2011.  This is the effective date that the NGB extended her Federal recognition.

4.  Although it appears she was not determined to be fully qualified for appointment at the time she executed the oath of office, none of the administrative errors that occurred in her appointment process were her fault.  First, the state erred in not timely discharging her from her enlisted status until a much later date.  Second, the state erred again in not publishing the appointment order when she signed the oath of office on 29 July 2010.  Third, the state failed a third time in not following up and ensuring she received timely Federal recognition.  Fourth, she exercised due diligence by addressing this issue with various members of the chain of command.  Finally, the individuals involved in her commissioning process acknowledged the multiple errors that occurred.  

5.  She has served faithfully and continues to do so today.  It is clear that an administrative error denied her permanent Federal recognition effective 29 July 2010.  She should have her Federal recognition orders amended to show the effective date of permanent Federal recognition in the rank of 2LT as 29 July 2010.  She is also entitled to back pay and allowance effective that 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 State Army National Guard records and all Department of the Army records of the individual concerned be corrected by:

	a.  amending NGB Special Orders Number 9 AR, dated 9 January 2012, to show she was extended Federal recognition in the grade of 2LT effective 29 July 2010; and

	b.  paying to her from Army National Guard funds 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)                                         AR20130005711





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ABCMR Record of Proceedings (cont)                                         AR20130005711



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