RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        29 September 2005
      DOCKET NUMBER:  AR20040011124


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. G. E. Vandenberg              |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Lester Echols                 |     |Chairperson          |
|     |Mr. Paul M. Smith                 |     |Member               |
|     |Mr. Leonard G. Hassell            |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his records be corrected to
show he received Federal Recognition as a first lieutenant effective 31
January 1997.  He also requests reinstatement of his earlier promotion date
to captain and a change of his branch to Aviation (AVN).

2.  The applicant states the Colorado Army National Guard (COARNG) failed
to follow-up to ensure that the National Guard Bureau (NGB) issued the
initial Federal Recognition Order and that he was never properly shown to
have been transferred to and promoted in the Aviation Branch (AVN).

3.  The applicant provides a copy of a 7 February 2002 DD Form 149
(Application for Correction of Military Records) and 25 pages of documents
from his Official Military Personnel File (OMPF) related to his dates of
promotion, transfers, and Federal Recognition.

CONSIDERATION OF EVIDENCE:

1.  The applicant's complete military records are not available to the
Board.  However, the file does contain sufficient documentation to allow
the Board to conduct a fair and impartial review of this issue.

2.  The records show that the applicant, a prior enlisted Soldier, was
commissioned a second lieutenant in the Army Reserve (USAR) in the Field
Artillery Branch (FA) on 11 June 1993.  In preparation of his release from
active duty, the applicant applied for and was accepted for transfer to the
COARNG Aviation Branch.

3.  A National Guard Bureau (NGB) Form 62-E (Application for Federal
Recognition), dated 10 December 1996, was completed requesting Federal
Recognition of the applicant as a first lieutenant in the Aviation Branch.

4.  On 30 January 1997 the applicant was released from active duty, as a
first lieutenant Field Artillery, and transferred to the COARNG, effective
the next day.

5.  On 1 February 1997, the applicant executed an Oath of Office as a first
lieutenant in the COARNG and was granted temporary Federal Recognition.



6.  There is no evidence that the applicant ever received permanent Federal
Recognition as a first lieutenant from the National Guard Bureau within the
six-month period required by National Guard/Army regulations.  As a result
the temporary Federal Recognition expired.

7.  COARNG Orders 037-028, dated 25 February 1997, appointed the applicant
as a first lieutenant in the Aviation Branch (AVN) effective 1 February
1997.

8.  COARNG Orders 237-033, dated 9 December 1998, promoted the applicant to
captain (AVN) effective 9 December 1998, with a duty assignment as a Flight
Operations Officer.

9.  National Guard Bureau Federal Recognition Special Orders Number 8 AR,
dated 13 January 1999, indicates that the applicant received permanent
Federal Recognition as a captain (FA) effective 13 January 1999.

10.  COARNG Orders 157-061, dated 14 August 2001, transferred the applicant
to the Aviation Branch as a captain effective 13 August 2001.

11.  National Guard Bureau Federal Recognition Special Orders Number 227
AR, dated 22 August 2001, indicates that due to a branch change the
applicant was granted Federal Recognition as a captain (AVN) effective
13 August 2001.

12.  COARNG Orders 016-116, dated 16 January 2002, separated him from the
Army National Guard (ANG), as a captain, effective 28 February 2002 and
reappointed him as a chief warrant officer two (CW2) effective 1 March
2002.

13.  COARNG Orders 016-119, dated 16 January 2002, appointed the applicant
a CW2 in the ANG effective 1 March 2002.

14.  A COARNG memorandum, dated 16 January 2002, states that the
applicant's Federal Recognition Orders for his initial appointment were
never received.

15.  In a 4 February 2002 COARNG Memorandum for Record, the applicant's
command requested that his records be corrected to show he was appointed a
first lieutenant FA effective 31 January 1997.  This memorandum also noted
that the applicant was processed for reappointment as a CW2 to allow him to
enter active duty in March 2002 under a Warrant Officer call to active duty
for helicopter pilots.

16.  The applicant applied to the Board in February 2002.  That request
appears to have been administratively closed with a determination that all
administrative remedies had not been exhausted.  The record indicates the
case was a referral to the NGB for consideration and action.

17.  NGB Special Orders Number 47 AR, dated 20 February 2002, granted the
applicant Federal Recognition, due to an initial appointment, as a first
lieutenant FA effective 16 January 2002.

18.  National Guard Bureau Federal Recognition Special Orders Number 55 AR,
dated 27 February 2002, indicates that the applicant received an initial
appointment and Federal Recognition as a CW2 153B (reappointment from first
lieutenant) effective 1 March 2002.

19.  National Guard Bureau Federal Recognition Special Orders Number 97 AR,
dated 3 April 2002, indicates that the applicant's Federal Recognition (as
a CW2, 153B) was withdrawn effective with his transfer to the USAR in an
active status, effective 26 March 2002.

20.  The applicant is currently serving on active duty as a USAR CW2 in a
152HI (Apache Longbow Pilot) position as tactical operations officer at Ft.
Bragg, North Carolina.  He has an active duty obligation through 25 March
2007.

21.  The applicant resubmitted his request on 18 November 2004.  The file
was referred to the Chief, Army National Guard Bureau, Army National Guard
Readiness Center, Arlington, Virginia for an advisory opinion on 15
December 2004.

22.  The Chief, Personnel Division provided an advisory opinion on 6
January 2005. The Chief outlined the pertinent actions and stated that, in
accordance with National Guard Regulation 600-100, paragraph 10-15b, the
applicant should have been granted Initial Federal Recognition as of 31
January 1997.  Therefore, the Chief recommended that the applicant's
request to be shown to have been initially appointed as a first lieutenant
as an aviation officer effective 31 January 1997 be approved.

23.  The Chief also indicated that the applicant's request for
reappointment, as a captain, should be referred to the (Human Resources
Command) St. Louis, Missouri due to the applicant's transfer to the USAR
effective 26 March 2002.

24.  A copy of the advisory opinion was forwarded to the applicant at the
address of record.  The correspondence was returned as undeliverable.  No
corrected address was provided.

25.  National Guard Regulation 600-100 (Commissioned Officer-Federal
Recognition and Related Personnel Actions) provides procedures for
processing all applications for Federal Recognition.  Paragraph 2-1 states
that 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 Army National
Guard of the United States if they have not already accepted such
appointment.

26.  National Guard Regulation 600-100, paragraph 2-2 states that 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.

27.  National Guard Regulation 600-100, 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 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 Federal
Recognition Board should be convened to consider the request again and
grant another new period of temporary Federal Recognition if warranted.

28.  National Guard Regulation 600-100, paragraph 10-15b states that
temporary Federal Recognition may be granted by a Federal Recognition Board
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 Federal
Recognition Board 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 record shows that the applicant was assessed into the COARNG as a
first lieutenant in the Aviation Branch.  Since this branch was the one in
which he applied and was accepted, assessed, and appointed, it is
appropriate to correct all of his promotion and appointment orders to show
that he was in the Aviation Branch from the date of his entry in the
COARNG, 31 January 1997.

2.  Based on this assessment, the orders transferring him from the Field
Artillery Branch to the Aviation Branch are incorrect and/or redundant and
should be purged from his records to avoid future confusion.

3.  The applicant was automatically granted temporary Federal Recognition
upon the execution of his Oath of Office on 1 February 1997.  At that time,
his Federal Recognition packet and allied documents should have been
forwarded to the Adjutant General of the State of Colorado for endorsement
to the National Guard Bureau for extension of permanent Federal
Recognition.  Through no fault of the applicant, this action was not taken.


4.  Subsequently, the applicant's Federal Recognition packet was considered
by another COARNG Federal Recognition Board.

5.  Based on the recommendations of the second COARNG Federal Recognition
Board, the National Guard Bureau issued orders awarding the applicant
permanent Federal Recognition effective 16 January 2002.

6.  From the foregoing, it is clear that an administrative error denied the
applicant Federal Recognition effective 1 February 1997.

7.  Based on the above findings and applicable law and regulation, it is
appropriate to correct the applicant's record by:

      a.  amending NGB Federal Recognition Special Orders Number 8 AR, dated
13 January 1999, to show the applicant received permanent Federal
Recognition as a captain in the Aviation Branch not the Field Artillery
Branch, effective 13 January 1999;


      b.  revoking and purging all copies of COARNG Orders 157-061, dated
14 August 2001, as redundant;


      c.  revoking and purging all copies of National Guard Bureau Federal
Recognition Special Orders Number 227 AR, dated 22 August 2001, as
redundant; and


      d.  amending NGB Federal Recognition Order Number 47 AR, dated
20 February 2002, to show an effective date of permanent Federal
Recognition in the grade of first lieutenant of 1 February 1997.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

__LE  ___  __LGH__  __PMS__  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief.  As a result, the Board
recommends that all Department of the Army records of the individual
concerned be corrected by:

      a.  amending NGB Federal Recognition Special Orders Number 8 AR, dated
13 January 1999, to show the applicant received permanent Federal
Recognition as a captain in the Aviation Branch not the Field Artillery
Branch, effective 13 January 1999;


      b.  revoking and purging all copies of COARNG Orders 157-061, dated
14 August 2001;


      c.  revoking and purging all copies of National Guard Bureau Federal
Recognition Special Orders Number 227 AR, dated 22 August 2001;


      d.  amending NGB Federal Recognition Order Number 47 AR, dated
20 February 2002, to show an effective date of permanent Federal
Recognition in the grade of first lieutenant of 1 February 1997.

2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
an effective date of Federal Recognition of 31 January 1997.




                                  ___      Lester Echols_________
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20040011124                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050929                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |                                        |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |100 correction of dates                 |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]