IN THE CASE OF:	  

		BOARD DATE:	  20 May 2014

		DOCKET NUMBER:  AR20130014920 


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 his original appointment date as a second lieutenant (2LT) be restored and his date of rank (DOR) adjusted from 6 March 2013 to 20 August 2011.

2.  The applicant states there was an issue with his Oath of Office and, through no fault of his own, it was not resolved in a timely manner causing him to lose his commission.  This happened after 18 months of honorable service with the North Carolina Army National Guard (NCARNG) and completion of the Infantry (IN) Basic Officer Leader Course (BOLC).  His temporary Federal recognition expired and the only option he was given was to execute a new oath which he did.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty), National Guard Bureau (NGB) Form 337 (Oaths of Office), DA Form 71 (Oath of Office - Military Personnel), and DA Form 1059 (Service School Academic Evaluation Report).

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted Reserve service, the applicant was appointed as a 2LT IN officer in the NCARNG on 20 August 2011 and he executed an NGB Form 337 and DA Form 71 on the same date.

2.  Orders 238-810, dated 26 August 2011, issued by Joint Force Headquarters (JFH), NCARNG, appointed him as a 2LT ARNG officer with an effective date and DOR of 20 August 2011 and assignment to the 1st Battalion, 120th Infantry Regiment, Jacksonville, NC.  

3.  He was ordered to active duty for training (ADT) and he entered active duty on 20 May 2012.  He attended and successfully completed the IN BOLC from 21 May to 6 September 2012 at Fort Benning, GA.  On 6 September 2012, he was honorably released from ADT to the control of the NCARNG.

4.  Orders 060-913, dated 1 March 2013, issued by JFH, NCARNG, promoted him to the rank of 1LT with an effective date and DOR of 20 February 2013.  

5.  Orders 067-881, dated 8 March 2013, issued by JFH, NCARNG, amended Orders 238-810, dated 26 August 2011, to show he was appointed as a 2LT ARNG officer with an effective date and DOR of 6 March 2013.

6.  Orders 067-883, dated 8 March 2013, issued by JFH, NCARNG, revoked Orders 060-913, dated 1 March 2013, promoting to 1LT.  

7.  Special Orders Number 97 AR, dated 12 April 2013, issued by the NGB granted him Federal recognition for his initial appointment as a 2LT in the ARNG with an effective date and DOR of 6 March 2013.

8.  In the processing of this case, on 22 October 2013, an advisory opinion was received from the Chief, Personnel Policy Division, NGB.  The advisory official recommended approval of the applicant's request to adjust his initial appointment date and DOR to 2LT to 20 August 2011 and opined:

	a.  The NCARNG should also submit the applicant's packet for promotion to 1LT with an effective date of 20 February 2013 and entitlement to all back pay and allowances as a result of the corrections.

	b.  The applicant stated there was an issue with his Oath of Office for his initial appointment and it was not resolved in a timely manner by the ARNG.  His State Federal recognition had expired due to an administrative error by the State and he was given a new Oath of Office.

	c.  National Guard Regulation 600-100 (Commissioned Officers - Federal Recognition and Related Personnel Actions), chapter 2, states, in part, "Temporary Federal recognition may be extended to an officer who has been appointed in the ARNG of a State and found qualified by a Federal Review Board (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 6 months after the effective date of State appointment.  However, should the initial period expire due to administrative processing delays though no fault of the applicant, a subsequent FRB should be convened and another period of temporary Federal recognition granted, if warranted."  The National Defense Authorization Act extends the period that members of the ARNG can be granted temporary Federal Recognition from 6 months to 1 year.  

	d.  NGB Personnel Policy Memorandum 08-035, dated 25 November 2008, "authorized Reserve Component 2LTs on the Reserve Active Status List (RASL) to be promoted to 1LT with a minimum of 18 months time in grade (TIG) provided they have completed BOLC and are otherwise qualified."  The applicant would have been eligible for promotion to 1LT on 20 February 2013 as he had completed BOLC on 6 September 2012.  Therefore, he should have been promoted 1LT with an effective date and DOR of 20 February 2013.

	e.  The state concurred with the recommendation.

9.  On 23 October 2013, the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He did not respond.

10.  National Guard Regulation 600-100 provides procedures for processing applications for Federal recognition. 

   a.  Paragraph 2-2 states that 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 2-13 states that 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.

	c.  Temporary Federal recognition 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 Federal recognition, the Chief, NGB extends permanent Federal recognition to the member in the grade and branch in which the member is qualified.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was appointed as a 2LT in the NCARNG and he executed an Oath of Office on 20 August 2011.  Through no fault of his own, his temporary Federal recognition expired and he was appointed as a 2LT in the NCARNG and executed an Oath of Office on 6 March 2013.

2.  He was extended Federal recognition for his initial appointment in the NCARNG as a 2LT with an effective date and DOR of 6 March 2013.  It appears the expiration of his temporary Federal recognition was an administrative error on the part of the State and he should have been extended Federal recognition for his initial appointment as a 2LT with an effective date and DOR of 20 August 2011.  Therefore, he is entitled to correction of his records to show he was extended Federal recognition effective 20 August 2011 with a DOR to 2LT of 20 August 2011.

3.  Based on his corrected initial appointment date and DOR to 2LT of 20 August 2011, he would have been eligible for promotion to 1LT on 20 February 2013.  This process requires a scrolling action.  Scrolling action is a function of the Secretary of Defense and is not within the purview of this Board. 

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

* amending NGB Special Orders Number 97 AR, dated 12 April 2013, to show he was appointed as a 2LT with an effective date and date of rank of 20 August 2011 and extended Federal recognition on that date in the rank of 2LT
* paying him any back pay and allowances due as a result of this correction



      _______ _   _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)                                         AR20130014920





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ABCMR Record of Proceedings (cont)                                         AR20130014920



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