IN THE CASE OF: BOARD DATE: 31 May 2016 DOCKET NUMBER: AR20150004450 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X___ ____X___ ____X___ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 31 May 2016 DOCKET NUMBER: AR20150004450 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. ____________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. IN THE CASE OF: BOARD DATE: 31 May 2016 DOCKET NUMBER: AR20150004450 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 effective date of appointment and date of rank (DOR) to second lieutenant (2LT) from 1 September 2014 to 17 May 2013. 2. The applicant states the Reserve Officers' Training Corps (ROTC) commissioned him on 17 May 2013; however, the California Army National Guard (CAARNG) did not submit his commissioning packet for Federal recognition until September 2014, at which time his temporary Federal recognition had expired. 3. The applicant provides copies of his: * Memorandum of Appointment, University of Southern California, dated 16 May 2013 * DA Form 71 (Oath of Office – Military Personnel), dated 17 May 2013 * National Guard Bureau (NGB) Form 337 (Oaths of Office), dated 1 September 2014 * Orders 265-1034, issued by the California Army National Guard (CAARNG) on 22 September 2014 * Memorandum of Appointment, NGB, dated 28 November 2014 CONSIDERATION OF EVIDENCE: 1. The applicant enlisted in the CAARNG on 12 January 2008. 2. His records contains a DA Form 597-3 (Army Senior ROTC Scholarship Cadet Contract), dated 15 September 2010, showing he attended the University of Southern California, in Los Angeles, CA. This form lists his education commencement date as 23 August 2010, and his education completion date as 15 May 2013. His contract indicates he would receive scholarship benefits for a period of 3 academic years. 3. His record contains a DA Form 4187 (Personnel Action), dated 31 May 2011, showing he requested Simultaneous Membership Program (SMP) Cadet Advancement to the rank/grade of sergeant (SGT)/E-5. His commander approved the request. 4. The applicant's official academic transcripts show the University of Southern California awarded him a Bachelor of Arts degree on 17 May 2013. 5. His DA Form 71 shows he was appointed as a Reserve commissioned officer of the Army in the rank of 2LT, at the University of Southern California on 17 May 2013. 6. The applicant provides an NGB Form 62E (Application for Federal Recognition as an ARNG Officer or Warrant Officer and Appointment as a Reserve Commissioned Officer or Warrant Officer of the Army in the ARNG of the United States), dated 29 May 2013. This form is silent about when or if the CAARNG extended him temporary Federal Recognition and none of the endorsing officials dated this form. However, this form does show the Adjutant General of CA requested that the Chief, NGB extend Federal Recognition to the applicant based on Orders Number 265-1034, issued by the Joint Forces Headquarters (JFHQ), CAARNG, on 22 September 2014. 7. Orders Number 6-1017, issued by JFHQ, CAARNG on 6 January 2014, honorably discharged him from the ARNG in the rank of sergeant effective 11 January 2014. The applicant's NGB Form 22 (Report of Separation and Record of Service) confirms the CAARNG discharged him from the CAARNG, in the rank/grade of SGT/E-5 upon reaching his expiration of service obligation. 8. Orders Number 265-1034, issued by JFHQ, CAARNG, on 22 September 2014, appointed him as a Tactical Intelligence Officer in the rank of 2LT in the ARNG effective 1 September 2014. 9. Special Orders Number 348 AR, issued by the NGB, on 28 November 2014, extended him Federal recognition in the CAARNG as a 2LT with an effective date and DOR of 1 September 2014. 10. Amendment Orders Number 50-1039, issued by JFHQ, CAARNG, on 19 February 2016, amended Orders Number 265-1034, issued by JFHQ, CAARNG, on 22 September 2014 to show his DOR to 2LT as 17 May 2013 instead of 1 September 2014. 11. Special Orders Number 56, issued by the NGB on 29 March 2016 amended Special Orders Number 348 AR, issued by the NGB, on 28 November 2014 to show his DOR to 2LT as 17 May 2013 instead of 1 September 2014. REFERENCES: 1. 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 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 (ARNGUS) if they have not already accepted such appointment. b. 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. c. 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. d. 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 FRB (Federal Recognition Board) 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. 2. Authority granted to the Secretaries of the Military Departments in the Secretary of Defense (SECDEF) Memorandum, subject: Re-Delegation of Authority under Executive Order 12396, dated 9 December 1982, to appoint officers under 10 USC 624 was rescinded, effective 1 July 2005, based on the Department of Justice's (Office of Legal Counsel) determination that the SECDEF's further delegation of the President’s authority to appoint military officers was not appropriate under law. Accordingly, all military officer appointments under 10 USC 12203, including original appointments in the Reserve of the Army, not previously approved by 30 June 2005, shall be submitted to the SECDEF. 3. 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 SECDEF via executive order. DISCUSSION: 1. The NGB corrected the applicant's DOR from 1 September 2014 to 17 May 2013. As such, it is unnecessary for the Board to take action on this portion of the applicant's request. 2. The applicant was appointed as a Reserve commissioned officer of the Army in the rank of 2LT on 17 May 2013. 3. Evidence shows he applied for Federal recognition as an ARNG officer on 29 May 2013; however, he maintained an enlisted status until 11 January 2014. The evidence is silent as to why the CAARNG did not act upon his 29 May 2013 request until 1 September 2014; nevertheless, he was appointed as a 2LT in the CAARNG and he executed an Oath of Office on 1 September 2014. 4. In accordance with NGR 600-100, paragraph 2-2(b) "The effective date of Federal recognition for the original appointment is the date on which the commissioned officer executes the oath of office in the State." The State appointed the applicant as a 2LT in the ARNG on 1 September 2014. Special Orders Number 348 AR, dated 28 November 2014, extended him Federal recognition as a 2LT in the ARNG with an effective date of 1 September 2014. 5. The applicant's effective date can only be changed by amending the date Federal recognition was granted by the Secretary of Defense. The ABCMR has no jurisdiction over Department of Defense records and therefore cannot make this type of correction. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150004450 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150004450 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2