BOARD DATE:	  30 July 2014

		DOCKET NUMBER:  AR20130018448 


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 her initial appointment date and date of rank (DOR) to second lieutenant (2LT) be adjusted to 11 May 2012.

2.  The applicant states:

* her effective DOR is currently 8 August 2012
* she signed her DA Form 71 (Oath of Office) and National Guard Bureau (NGB) Form 337 (Oaths of Office) on 11 May 2012 when she accepted her commission through Pennsylvania State University
* her DOR should be adjusted to 11 May 2012, the date she was accessed as a 2LT in the District of Columbia (DC) Army National Guard (DCARNG)
* Orders Number 230-023, dated 10 May 2012, discharged her from her unit as a cadet
* on 8 August 2012, Orders Number 230-023 were revoked and replaced with Orders Number 255-012, which discharged her on 7 August 2012 and made her DOR 8 August 2012
* her commission was not recognized for 2 months due to an erroneously filled National Guard Bureau (NGB) Form 337 used to replace her DA Form 71 that was initially completed by her cadet command
* her DOR should be the same date her original DA Form 71 was signed and processed



3.  The applicant provides:

* DA Form 71
* Orders Number 220-015, issued by Joint Task Force Headquarters, 
DC National Guard (JTFH DCNG), Washington, D.C., dated 7 August 2012
* Orders Number 230-023, issued by JTFH DCNG, dated 17 August 2012
* Orders Number 255-012, issued by JTFH DCNG, dated 11 September 2012

CONSIDERATION OF EVIDENCE:

1.  On 11 May 2012, the applicant executed an oath of office as a Reserve commissioned officer in the rank of 2LT.

2.  On 8 August 2012, she was appointed as a Reserve commissioned officer in the rank of 2LT.

3.  JTFH DCNG Orders Number 220-015, dated 7 August 2012, appointed her as a 2LT with an effective date of 8 August 2012.

4.  JTFH DCNG Orders Number 230-023, dated 17 August 2012, honorably discharged her effective 10 May 2012.

5.  JTFH DCNG Orders Number 255-012, dated 11 September 2012, amended Orders Number 230-023, dated 17 August 2012, by changing the effective date to 7 August 2012.

6.  On 18 January 2013, the applicant completed the Military Police Basic Officer Leadership Course.

7.  On 12 April 2013, the NGB published Special Orders Number 97 AR extending her Federal recognition (FEDREC) for her initial appointment in the rank/grade of 2LT/O-1 with an effective date of 8 August 2012.

8.  A memorandum from the Chief, Personnel Division, NGB, dated 12 April 2013, appointed the applicant a Reserve commissioned officer in the rank of 2LT effective 8 August 2012.

9.  On 30 April 2013, an advisory opinion was obtained from Chief, Personnel Policy, NGB.  This official states the State has adjusted the Soldier's DOR for time in grade purposes; however, the State non-concurs with amending the effective date of 8 August 2012.  The advisory official recommends approval and correction of the applicant's records as follows:

	a.  Amending Federal Recognition Order Number 97 AR, dated 12 April 2013, to reflect the Soldier's initial appointment and DOR to 2LT as 11 May 2012.

	b.  Amending JTFH DCNG Order Number 220-015, dated 7 August 2012, to reflect the Soldier's initial appointment and DOR to 2LT as 11 May 2012.

	c.  Revoking JTFH DCNG Order Number 255-012, dated 11 May 2012.

	d.  Paying all back pay and allowances that may be associated with this correction.

10.  The advisory official also recommended that the DCARNG submit the applicant's packet for promotion to first lieutenant (1LT) with a promotion effective date and a DOR of 11 November 2013.

11.  On 1 May 2014, a copy of the advisory opinion was forwarded to the applicant for information and to allow her the opportunity to submit comments or a rebuttal.  She did not respond within the time allotted.

12.  The applicant's NGB Form 337 is not available for review and she does not provide a copy.

13.  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 grades O-2 and O-3 was rescinded effective 1 July 2005 based on advice from the Department of Justice that prohibits redelegation 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. 

14.  Title 10, U.S. Code, section 12203, provides that appointments of Reserve officers in the grades of lieutenant colonel and below shall be made by the President.  This authority has been delegated to the Secretary of Defense via executive order.  


15.  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 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 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.

16.  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 a year. 

17.  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.

18.  NGB Personnel Policy Memorandum 08-035, dated 25 November 2008, and Office of the Assistant Secretary of the Army for Manpower and Reserve Affairs memorandum, dated 19 August 2008, authorized Reserve Component 2LTs on the Reserve Active Status List to be promoted to 1LT with a minimum of 18 months of time in grade and completion of the BOLC, if otherwise qualified.

19.  Personnel Policy Memorandum Number 13-006, issued by NGB on 6 February 2013, revised the administrative process for promotion to 1LT.  It states that, effective 1 March 2013, the only documentation required for submission to the NGB Federal Recognition Section for promotion to 1LT is NGB Form 78 (Recommendation for Promotion to 1LT/Chief Warrant Officer Two).  The policy requires States to ensure each officer is qualified for promotion and that documents are on file in support of an officer's promotion to 1LT.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an adjustment of her initial appointment date and DOR to 11 May 2012 was carefully considered and determined to have merit.

2.  It is clear that administrative errors delayed FEDREC for her initial appointment.  She took the oaths of office on 11 May 2012; however, JTFH DCNG issued orders appointing her to the rank of 2LT/O-2, effective 8 August 2012.  She eventually received FEDREC for her initial appointment effective 8 August 2012.  It is unclear why a new effective date was established. 

3.  Regardless of the reason for the new appointment effective date, it would be appropriate to amend NGB Special Orders Number 97 AR to show she was initially appointed on 11 May 2012 and extended FEDREC on that date.  Her effective date of appointment and DOR for 2LT/O-1 will be 11 May 2012.

4.  The delay in processing the applicant's initial appointment paperwork affected her promotion to 1LT/O-2.  The advisory official recommends the DCARNG submit the applicant's packet for promotion to 1LT/O-2 with a promotion effective date and DOR of 11 November 2013.  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 her promotion.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X_____  _X_______  _X___  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 97 AR, dated 12 April 2013, to show she was initially appointed on 11 May 2012 and extended FEDREC on that date
* providing her all pay and allowances due as a result of the above 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)                                         AR20130018448



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ABCMR Record of Proceedings (cont)                                         AR20130018448



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