IN THE CASE OF:	  

		BOARD DATE:  5 September 2013

		DOCKET NUMBER:  AR20130012172 


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 his Federal Recognition date to 3 September 2009.

2.  The applicant states the original appointment and supporting documentation was not submitted until July 2011.  Federal Recognition has to be dated within one year.  

3.  The applicant provides in support of his request:

* Hawaii Army National Guard (HIARNG) Federal Recognition Examining Board (FREB) appointment memorandum, dated 28 July 2009
* HIARNG FREB proceedings, dated 28 July 2009
* Oath of Office , dated 3 September 2009
* Hawaii Department of Defense appointment Orders 251-025, dated 8 September 2009
* Oath of Office, dated 4 April 2011
* National Guard Bureau (NGB) Special Orders 269 AR, dated 27 October 2011

CONSIDERATION OF EVIDENCE:

1.  On 28 July 2009, a Federal Recognition Examining Board recommended that the applicant be granted Federal recognition.

2.  On 3 September 2009, the applicant executed an oath of office as a Reserve commissioned officer.  On the same date he executed an oath of office for an appointment in the HIARNG.

3.  Orders 251-025, dated 8 September 2009, issued by the Hawaii Department of Defense show the applicant was granted temporary FEDREC as a first lieutenant (1LT) Army Nurse Corps, effective 3 September 2009.

4.  On 4 April 2011, the applicant executed another oath of office as a Reserve commissioned officer.  On the same date he executed another oath of office for an appointment in the HIARNG.

5.  On 12 May 2011, a HIARNG FREB recommended that the applicant be granted Federal recognition.

6.  On 27 October 2011, the NGB published Special Orders Number 269 AR, extending Federal recognition for his initial appointment as a 1LT, effective 
14  April 2011.

7.  A 13 January 2013 advisory opinion regarding this case  was obtained from the NGB.  The Acting Chief, Personnel Policy Division recommended amending the applicant's FEDREC to 3 September 2009.  The State concurred with that recommendation.  The Acting Chief summarized the case by pointing out that the original FEDREC had never been submitted and that the HIARNG had tried to correct this error by conducting a new board and submitting another FEDREC recommendation in October 2011.

8.  The applicant was provided a copy of the advisory opinion for information/rebuttal but he did not respond in the allotted time.

9.  National Guard Regulation 600-100 (Commissioned Officers - Federal Recognition and Related Personnel Actions) provides procedures for processing applications for Federal recognition.

	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 Federal recognition 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 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 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 Federal recognition, temporary Federal recognition will automatically terminate six 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 FREB should be convened to consider the request again and grant another new period of temporary Federal recognition if warranted.

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

10.  Title 32 United States Code (U.S.C.), section 308, (Temporary Federal recognition of officers) allows the Secretary of the Army to extend temporary Federal recognition as an officer of the Army National Guard to any person who has passed the examination prescribed in Title 10, U.S.C., section 307(b), pending his or her appointment as a Reserve officer of the Army.  The statute allows for temporary Federal recognition to be extended up to a year.  The statute does not expressly prohibit extension of additional periods of temporary Federal recognition.  

11.  Title 10, U.S.C., section 12211(b), states when an officer granted temporary Federal recognition in the ARNG is appointed in the U.S. Army Reserve, their appointment date will bear the date of the temporary Federal Recognition.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his Federal recognition appointment date should be 3 September 2009 was carefully considered.

2.  It is clear that an administrative error denied him Federal recognition effective 3 September 2009.  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 1LT as 3 September 2009.

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 27 October 2011, to show he was extended Federal recognition in the rank of 1LT, effective 3 September 2009.




      _______ _  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)                                         AR20130012172



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ABCMR Record of Proceedings (cont)                                         AR20130012172



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