IN THE CASE OF: BOARD DATE: 3 May 2012 DOCKET NUMBER: AR20110014706 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: * adjustment of his initial effective date of appointment and date of rank (DOR) to second lieutenant (2LT) from 15 May 2010 to 14 December 2009 * promotion to first lieutenant (1LT) * restoration of back pay and allowances 2. The applicant states upon appointment in the Texas Army National Guard (TXARNG), his packet was mishandled by the office that handles officers' records. He was appointed in the TXARNG on 14 December 2009 but he did not receive Federal recognition until 15 May 2010. This also caused his promotion to 1LT to be delayed and deprived him of pay and allowances for three drills. 3. The applicant provides: * DA Form 1059 (Service School Academic Evaluation Report), dated 3 February 2011 * Orders 168-1079, issued by the TXARNG, dated 17 June 2010 * National Guard Bureau (NGB) Form 337 (Oaths of Office), dated 15 May 2010 * DA Form 71 (Oath of Office), dated 14 December 2009 * NGB Special Orders Number 248 AR, dated 9 November 2010 CONSIDERATION OF EVIDENCE: 1. Having had prior enlisted service, the applicant was found professionally qualified for appointment as a 2LT in the TXARNG. 2. On 14 December 2009, he executed a DA Form 71 as a Reserve commissioned officer. 3. The available record does not indicate his appointment packet was forwarded through the State Adjutant General to the NGB for permanent Federal recognition. 4. On 15 May 2010, he executed an NGB Form 337 in the TXARNG, and on 17 June 2010, Orders 168-1079 appointed him as a 2LT in the TXARNG, effective 15 May 2010. 5. On 9 November 2010, NGB Special Orders Number 248 AR extended him Federal recognition for initial appointment in the ARNG with an effective date and DOR of 15 May 2010. 6. He attended the Basic Officer Leader Course (BOLC) from 4 October 2010 to 3 February 2011 at Fort Benning, GA and graduated on this date. 7. Orders 013-1041, issued by the TXARNG, dated 13 January 2012, promoted the applicant to 1LT, effective date and with a DOR of 10 November 2011. 8. NGB Special Orders Number 78 AR, dated 7 March 2012, extended him Federal recognition for the purpose of promotion to 1LT in the ARNG with an effective date and DOR of 10 November 2011. 9. During the processing of this case, on 21 January 2012, an advisory opinion was obtained from the Chief, Personnel Policy Division, NGB. The advisory official recommended approval of the applicant’s request to adjust his initial appointment date to 14 December 2009, promotion to 1LT effective 14 June 2011, and payment of back pay and allowances. The advisory official stated that as a result of an administrative error, the applicant was denied proper appointment and promotion. 10. On 30 April 2012, an advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal. On the same day, by email, he concurred with the NGB's recommendation. 11. National Guard Regulation 600-100 provides procedures for processing applications for Federal recognition. 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. 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 2-3a 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 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 a Federal Recognition Board (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 Federal recognition, temporary Federal recognition will automatically terminate 6 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 FRB should be convened to consider the request again and grant another new period of temporary Federal recognition if warranted. d. Paragraph 10-15b states that 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 (Proceedings of a Federal Recognition Examining Board (ARNG)) 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. 12. NGB Personnel Policy Memorandum 08-035, dated 25 November 2008 and Department of the Army, Office of the Assistant Secretary of the Army (Manpower and Reserve Affairs) Memorandum, dated 19 August 2008, state that "this memorandum establishes Department of the Army Policy authorizing 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) and completion of the BOLC, if otherwise qualified." DISCUSSION AND CONCLUSIONS: 1. The evidence of record shows the applicant executed a DA Form 71 for appointment in the TXARNG on 14 December 2009. At that time, his complete Federal recognition packet and allied documents should have been forwarded to The Adjutant General of the State of Texas for endorsement to the NGB for extension of permanent Federal recognition. Through no fault of the applicant, this action was not taken. 2. It was later discovered that he had not been extended Federal recognition for his initial appointment. As such, he executed an NGB Form 337 on 15 May 2010 as a 2LT in the TXARNG. Based on this second oath of office, NGB issued orders awarding him permanent Federal recognition effective 15 May 2010. This administrative error denied him both timely Federal recognition for initial appointment and timely promotion to 1LT. Based on his erroneous DOR as a 2LT (15 May 2010), he was promoted to 1LT 18 months later, on 11 August 2011. 3. It is clear that an administrative error denied him permanent Federal recognition effective 14 December 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 2LT as 14 December 2009. 4. Furthermore, had the applicant's Federal recognition date been correct, he would have been promoted to 1LT effective 14 June 2011. Therefore, the applicant is entitled to have his Federal Recognition orders for promotion to 1LT amended to show the effective date of permanent Federal recognition in the rank of 1LT as 14 June 2011. 5. The applicant should also be entitled to receive all back pay and allowances as a result of correction of his initial appointment and promotion to 1LT. 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 State Army National Guard records and all Department of the Army records of the individual concerned be corrected by: a. amending NGB Special Orders Number 248 AR, dated 9 November 2010, to show he was extended Federal recognition in the grade of 2LT effective 14 December 2009; b. amending NGB Special Orders Number 78 AR, dated 7 March 2012, to show he was extended Federal Recognition in the grade of 1LT effective 14 June 2011; and c. paying to him from Army National Guard funds all back pay and allowances due as a result of these corrections. ____________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) AR20110014706 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20110014706 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1