IN THE CASE OF:	  

		BOARD DATE:	  12 November 2014

		DOCKET NUMBER:  AR20130006923 


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 the date he was commissioned as a
second lieutenant (2LT)/O-1 into the Army National Guard (ARNG).  He further requests promotion to first lieutenant (1LT/O-2), effective 14 February 2013 and any back pay and allowances due based on his corrected promotion eligibility date.

2.  The applicant states the date he was commissioned to 2LT needs to reflect 14 August 2011 instead of 14 August 2012.  His Federal recognition (FEDREC) date is incorrect due to an input error at the State level.

3.  The applicant provides:

* Orders 139-046, issued by the State of Ohio Adjutant General's Department, dated 19 May 2011
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) for the period ending 13 August 2011
* DA Form 71 (Oath of Office – Military Personnel), dated 14 August 2011
* NGB 337 (Oaths of Office), dated 14 August 2011
* DA Form 4187 (Personnel Action), dated 14 August 2011
* Orders 228-918, issued by the State of Ohio Adjutant General's Department, dated 16 August 2011
* Orders 231-906, issued by the same department, dated 19 August 2011
* DA Form 1059 (Service School Academic Evaluation Report), dated 21 May 2012
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 24 May 2012
* NGB Special Orders Number 402 AR, dated 19 November 2012
* Memorandum from the Personnel Branch Chief, State of Ohio Adjutant General's Department, subject:  Correction of ARNG Initial Appointment Effective Date and Subsequent Promotion for (applicant's name), dated
14 February 2013

CONSIDERATION OF EVIDENCE:

1.  Orders 139-046, dated 19 May 2011, ordered the applicant to active duty for training in the rank/grade of specialist (SPC)/E-4 for the purpose of attending Officer Candidate School (OCS) during the period 10 June 2011 to 6 August 2011.

2.  On 2 August 2011, a FEDREC board (FRB) recommended the applicant be granted FEDREC as a 2LT.

3.  On 14 August 2011, he took the oaths of office and he was granted temporary FEDREC as a 2LT in the Ohio ARNG (OHARNG).

4.  Orders 228-918, dated 16 August 2011, discharged him as an enlisted Soldier effective 13 August 2011 for the purpose of appointment as a commissioned officer.

5.  Orders 231-906, dated 19 August 2011, appointed him as a 2LT in the OHARNG in the Quartermaster (QM) Branch effective 14 August 2011.

6.  A DA Form 1059, dated 21 May 2012, shows he successfully completed the QM Basic Officer Leader Course (BOLC) on 24 May 2012.

7.  NGB Special Orders Number 402 AR, dated 19 November 2012, announced the extension of FEDREC to the applicant with an initial appointment as a 2LT effective 14 August 2012.

8.  He provides a memorandum for this Board from Chief Warrant Officer Four (CW4) CAH, the Personnel Branch Chief, State of Ohio Adjutant General's Department, subject:  Correction of ARNG Initial Appointment Effective Date and Subsequent Promotion for (applicant's name), dated 14 February 2013.  CW4 CAH certified the applicant's initial appointment packet was delayed in submission to the NGB for publication of permanent FEDREC as required by 


National Guard Regulation 600-100 (Commissioned Officers - FEDREC and Related Personnel Actions).  For reasons unknown, the appointment packet was never uploaded to Guard Knowledge Online.  Once the State identified this major oversight, it was clear that the applicant's temporary FEDREC had expired.  When the State obtained another copy of the applicant's appointment packet, her office identified discrepancies that may have prevented the packet from being processed initially.  Once all discrepancies were resolved, the packet was re-boarded on 14 August 2012.

	a.  CW4 CAH stated the applicant was fully eligible for promotion to 1LT/O-2, effective 14 February 2013, but due to the delay in submitting the applicant's initial appointment and issuance of FEDREC as an ARNG officer, his promotion was delayed.

	b.  CW4 CAH recommended the applicant be granted full relief of appointment backdated to the original date of 14 August 2011.  Based upon appropriate adjustment to the applicant's appointment date, she recommended the applicant be granted FEDREC to the rank of 1LT, effective 14 February 2013, without further delay.  She further stated the error in the processing of the applicant's appointment packet was due to the conditions within her office and her office accepts full responsibility for the delay in the applicant's FEDREC issue.

9.  During the processing of this case, on 12 August 2013, an advisory opinion was obtained from the Chief, Personnel Policy Division, NGB.

	a.  The advisory official recommended approval of the applicant's request and that the following actions be taken:

* amend NGB Special Orders Number 402 AR, dated 19 November 2012, to reflect the applicant's initial appointment date to 2LT as
14 August 2011
* OHARNG should submit the applicant's packet for promotion to 1LT with a promotion effective date and date of rank (DOR) of 14 February 2013
* pay the applicant all back pay and allowances associated with these corrections

	b.  The advisory official recounts the circumstances described in the memorandum from CW4 CAH that indicates the delay was through no fault of the applicant.  The official also notes that, in accordance with National Guard Regulation 600-100, paragraph 2-2(b), the effective date of FEDREC for an original appointment is the date on which the commissioned officer executes the oath of office in the State.

	c.  The advisory official states National Guard Regulation 600-100, paragraph 2-13, states temporary FEDREC 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 FEDREC, temporary FEDREC will automatically terminate 6 months after the effective date of State appointment.  However, should the initial period of temporary FEDREC expire due to administrative processing delays, through no fault of the officer, a subsequent FRB should be convened to consider the request again and grant a new period of temporary FEDREC if warranted.  The period that members of the National Guard may be granted temporary FEDREC has been extended by law from 6 months to 1 year.

	d.  The advisory official states that, under NGB policy, the applicant would have been eligible for promotion to 1LT 18 months after his initial appointment as a 2LT.  The record shows he was qualified for promotion to 1LT and should have been promoted to that rank with a promotion effective date and DOR of 14 February 2013.

	e.  The State concurred with this recommendation.

10.  The applicant was provided a copy of the advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal.  He did not respond.

11.  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 Title 10, U.S. Code, section 624 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 re-delegation below the Secretary of Defense of the President’s authority to appoint military officers.  All military officer appointments under Title 10, U.S. Code, section 12203 including original appointments in the Reserve of the Army not previously approved by 30 June 2005, shall also be submitted to the Secretary of Defense.

12.  National Guard Regulation 600-100 provides procedures for processing applications for FEDREC.


	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 FEDREC 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 FEDREC upon initial appointment establishes the authorized grade to be used by all officers in their federally recognized status.

	c.  Paragraph 2-13 states temporary FEDREC 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 FEDREC, temporary FEDREC will automatically terminate 6 months after the effective date of State appointment.  However, should the initial period of temporary FEDREC 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 FEDREC if warranted.

	d.  Paragraph 10-15b states temporary FEDREC 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 FEDREC, the Chief, NGB, extends permanent FEDREC to the member in the grade and branch in which the member is qualified.

13.  Title 32, U.S. Code, section 308, (FEDREC of officers:  temporary recognition) allows the Secretary of the Army to extend temporary FEDREC as an officer of the ARNG 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 FEDREC to be extended up to one year.

14.  Title 10, U.S. Code, section 12211(b), states when an officer granted temporary FEDREC in the ARNG is appointed in the U.S. Army Reserve, his or her appointment date will bear the date of the temporary FEDREC.

15.  Department of the Army, Office of the Assistant Secretary, Manpower and Reserve Affairs memorandum, subject:  Reduction in the Time in Grade (TIG) Requirement for Promotion of Reserve Component Officers to 1LT, dated 19 August 2008, authorizes Reserve Component 2LTs on the Reserve Active Status List to be promoted with a minimum of 18 months TIG and completion of the BOLC, if otherwise qualified.

16.  Title 32, U.S. Code, section 310 (FEDREC of National Guard officers: automatic recognition) states that effective 2 January 2013 and notwithstanding sections 307 and 309 of this title, if a second lieutenant of the National Guard is promoted to the grade of first lieutenant to fill a vacancy in a federally recognized unit in the National Guard, FEDREC is automatically extended to that officer in the grade of first lieutenant, effective as of the date on which that officer has completed the service in the grade specified in section 14303 (a)(1) of Title 10 and has met such other requirements as prescribed by the Secretary concerned under section 14308(b) of that title, if the officer has remained in an active status since the officer was so recommended.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record supports the applicant's request for correction of the date he was commissioned in the ARNG.

2.  It is clear that administrative errors delayed FEDREC for his initial appointment.  He took the oaths of office on 14 August 2011.  The Adjutant General's Department, State of Ohio, issued orders appointing him as a 2LT in the OHARNG effective that date.  It appears that due to an error a new effective date was established, resulting in his eventually receiving FEDREC for his initial appointment effective 14 August 2012.  As such, it would be appropriate to amend NGB Special Orders Number 402 AR to show he was initially appointed on 14 August 2011, extended FEDREC on that date, and assigned a DOR for 2LT effective that same date.

3.  The delay in processing the applicant's initial appointment paperwork affected his promotion to 1LT.  Evidence shows that had it not been for the delay in his initial appointment to 2LT and based on the change in law allowing for automatic FEDREC of an otherwise eligible National Guard officer to be promoted to the rank of 1LT, the applicant would have been eligible for promotion to 1LT effective 14 February 2013.  Therefore, it would be appropriate to correct his records to show NGB extended FEDREC to him effective 14 February 2013 with an assigned DOR of that same date.

BOARD VOTE:

____x___  ___x____  ____x___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all ARNG and Department of the Army records of the individual concerned be corrected by:

	a.  amending NGB Special Orders Number 402 AR, dated 19 November 2012, to show he was initially appointed to 2LT on 14 August 2011 and extended FEDREC on that date, and

	b.  promoting him to 1LT and extending him FEDREC with an effective date and DOR of 14 February 2013.



      _______ _   _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)                                         AR20130006923



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