IN THE CASE OF:	  

		BOARD DATE:	    24 October 2013

		DOCKET NUMBER:  AR20130007550 


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 into the Army National Guard (ARNG). 

2.  He states the date he was commissioned needs to be changed from July 2012 to August 2010.  He was commissioned on 15 August 2010, but the State did not submit the proper paperwork.  He is providing a memorandum in which the chief warrant officer two (CW2) in charge takes full responsibility.

3.  He provides:

* a memorandum, subject:  Correction of ARNG Initial Appointment Effective Date and Subsequent Promotion for [Applicant], dated 
13 October 2012
* orders
* Oaths of Office, dated 15 August 2010
* DA Form 71 (Oath of Office - Military Personnel), dated 15 August 2010
* ARNG Officer Candidate School (OCS) Diploma, dated 7 August 2010
* a memorandum, subject:  Recommendation for Promotion of Officer [Applicant], dated 29 January 2012
* DA Form 1059 (Service School Academic Evaluation Report), dated 19 August 2011




CONSIDERATION OF EVIDENCE:

1.  The applicant had prior enlisted service in the U.S. Army Reserve, Regular Army, and ARNG.  On 15 August 2010, he took the oaths of office and he was granted temporary Federal recognition as a second lieutenant (2LT)/O-1 in the Ohio ARNG (OHARNG).  

2.  He provides Orders 229-056, dated 17 August 2010, issued by the Adjutant General's Department, State of Ohio, showing he was appointed as a 2LT/O-1 in the ARNG in the Military Police (MP) Branch effective 15 August 2010.

3.  On 18 April 2012, the Adjutant General's Department, State of Ohio, issued Orders 109-911 promoting him to first lieutenant (1LT)/O-2 effective 19 August 2011.  He provides Orders 132-910, dated 11 May 2012, issued by the same authority, which amended Orders 109-911 to show the effective date of his promotion and his date of rank (DOR) for 1LT/O-2 as 15 February 2012.  

4.  On 17 July 2012, he again took the oaths of office as a 2LT/O-1 in the OHARNG and he was granted temporary Federal recognition.  

5.  On 12 September 2012, the Adjutant General's Department, State of Ohio, issued Orders 256-916 appointing him as a 2LT/O-1 in the ARNG in the MP Branch effective 17 July 2012.  

6.  On 11 April 2013, the National Guard Bureau (NGB) issued Special Orders Number 96 AR announcing the extension of Federal recognition (FEDREC) to the applicant for initial appointment as a 2LT/O-1 effective 17 July 2012.  

7.  He provides a memorandum for this Board, subject:  Correction of ARNG Initial Appointment Effective Date and Subsequent Promotion for [Applicant], dated 13 October 2012, from CW2 DJR, an OHARNG personnel branch officer.  

	a.  CW2 DJR states he certifies that the applicant's initial appointment packet was delayed.  He states the packet was never assembled or boarded for unknown reasons.  Once it was assembled, it was discovered that documents were missing and incomplete, which may have prevented the packet from being processed initially.  

	b.  The applicant was eligible for promotion to 1LT/O-2 on 15 February 2012.  At that time it was discovered that he had not received FEDREC for his original appointment.  Once this major oversight was identified, it was clear that his temporary FEDREC had expired.  His appointment packet was re-boarded on 17 July 2012.  
	c.  CW2 DJR requests the applicant be granted full relief by backdating his initial appointment to 15 August 2010, and upon making this correction, promoting the applicant to 1LT/O-2, and extending FEDREC to him effective 15 February 2012.

	d.  CWS DJR states his office experienced dramatic turnover during the time of the applicant's initial appointment and promotion packet processing.  He states this caused an unnecessary delay and his office assumes full responsibility for the delay.  

8.  On 24 June 2013, the Chief, Personnel Policy Division, NGB, provided an advisory opinion.  

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

* amend NGB Special Orders Number 96 AR to reflect the applicant's initial appointment date as 15 August 2010
* the OHARNG submit the applicant's packet for promotion to 1LT/O-2 with a promotion effective date and DOR of 15 February 2012
* pay the applicant all back pay and allowances associated with these corrections 

	b.  The advisory official recounts the circumstances described in the memorandum from CW2 DJR and notes that, in accordance with National Guard Regulation 600-100 (Commissioned Officers - FEDREC and Related Personnel Actions), 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 a 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 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 FREB should be convened to consider the request again and grant a new period of temporary FEDREC is 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/O-2 18 months after his initial appointment as a 2LT/O-1.  The record shows he was qualified for promotion to 1LT/O-2 and should have been promoted to that rank/grade with a promotion effective date and DOR of 15 February 2012.  

9.  The applicant was provided a copy of the advisory opinion for his review and comment.  He did not respond within the time allotted.  

10.  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 re-delegation 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.

11.  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 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 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 FREB 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 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 FEDREC, the Chief, NGB, extends permanent FEDREC to the member in the grade and branch in which the member is qualified.

12.  Title 32, U.S. Code, section 308, (Federal recognition 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 a year.  The statute does not expressly prohibit extension of additional periods of temporary FEDREC.  

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

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 15 August 2010, and the Adjutant General's Department, State of Ohio, issued orders appointing him as a 2LT/O-2 in the OHARNG effective that date.  He eventually received FEDREC for his initial appointment effective 17 July 2012.  It is unclear why a new effective date was established, though a determination may have been made that expiration of temporary FEDREC necessitated a new appointment effective date.  

3.  Regardless of the reason for the new appointment effective date, it would be appropriate to amend NGB Special Orders Number 96 AR to show he was initially appointed on 15 August 2010 and extended FEDREC on that date.  His effective date of appointment and DOR for 2LT/O-1 will be 15 August 2010.

4.  The delay in processing the applicant's initial appointment paperwork affected his promotion to 1LT/O-2.  The advisory official recommends the OHARNG submit the applicant's packet for promotion to 1LT/O-2 with a promotion effective date and DOR of 15 February 2012.  The applicant's packet for promotion to 1LT/O-2 should be submitted expeditiously.  Unfortunately, the effective date cannot be earlier than the date on which the Secretary of Defense approves his promotion.  

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 Department of the Army records of the individual concerned be corrected by amending NGB Special Orders Number 96 AR, dated 11 April 2013, to show he was initially appointed on 15 August 2010 and extended FEDREC on that date.  



      _______ _ 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)                                         AR20130007550



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