RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 6 April 2004
         DOCKET NUMBER: AR2004103071


         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. Vic Whitney		Analyst

The following members, a quorum, were present:

Mr. Stanley Kelley		Chairperson
Mr. Robert Duecaster		Member
Ms. Lana E. McGlynn		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military records.

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

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THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests that he receive credit for his Ready Reserve service in the Idaho Army National Guard (IDARNG) from 16 July 1997 through 22 February 2001 with entitlement to all retirement points, and pay and allowances earned for that service. He also requests transfer to the Retired Reserve with entitlement to retired pay at age 60.

2. The applicant states that after serving over 3 years in the IDARNG his appointment was revoked when it was determined that he was ineligible for appointment. He has not performed any ARNG training since February 2001. His release from the Naval Reserve and appointment in the ARNG may have been accomplished in error but not deceit on his part.

3. The applicant provides copies of his Navy records, his conditional release, his ARNG and Federal Recognition orders, his Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter), and the IDARNG requests for exception to policy with National Guard Bureau (NGB) response.

CONSIDERATION OF EVIDENCE:

1. On an unknown date the applicant applied for appointment in the IDARNG as a Quartermaster officer in the rank of captain. On his application he noted that he had prior Air Force service and was presently a lieutenant in the Navy. He answered "No" to the question if he had ever been separated from the military by reason of board action.

2. In June 1996, the IDARNG requested a medical waiver for the applicant to be appointed. They noted that he was currently a member of the Naval Reserve in the pay grade of O-3. On 6 May 1997, the Naval Reserve Personnel Center notified the applicant and the IDARNG that the request for a conditional release from the Naval Reserve would be accepted based on his appointment in the ARNG prior to 26 July 1997. This notification also stated that the applicant could remain in a drilling status with the Naval Reserve through the day before he entered the gaining service. In June 1997, the applicant's prospective unit again requested a medical waiver for the applicant's appointment.

3. On 16 July 1997, the applicant was recommended for appointment in the ARNG and Federal Recognition as a captain in the Ordnance Corps. Effective 16 July 1997, the applicant executed his Oath of Office for appointment as a captain in the IDARNG. On 31 July 1997, the IDARNG issued Orders 431-001 that appointed the applicant as an Ordnance Corps captain effective 16 July 1997. On 26 August 1997, the NGB extended Federal Recognition to the applicant as an Ordnance Corps captain effective 16 July 1997.

On 25 November 1997, the Naval Reserve Personnel Center accepted the applicant's resignation from his Navy commissioned officer status based on his ARNG appointment and issued him an honorable discharge.

4. On 19 June 2000, the IDARNG requested a waiver to appoint the applicant as a captain in the IDARNG effective 16 July 1997. The basis for the request was recently received information that the applicant was in the Retired Reserve of the Navy at the time of his appointment in the IDARNG. The request noted that the Navy had issued a separation order and honorable discharge to the applicant concurrent with his appointment in the IDARNG in July 1997.

5. On 7 December 2000, the IDARNG issued a 20-Year Letter to the applicant. The notification states that the applicant will be eligible for retired pay at age 60 and it may not be denied or revoked on the basis of any error, miscalculation, misinformation, or administrative determination of years of creditable service unless it resulted from fraud or misrepresentation on his part. It goes on to state that the actual retired pay received may be adjusted to correct any error in the number of years of creditable service upon which retired pay is based. The applicant's associated retirement points statement shows that he was credited with 20 years, 7 months, and 22 days of qualifying service for retirement.

6. On 9 February 2001, the NGB responded to the appointment waiver request from the IDARNG. The NGB determined that the applicant was ineligible for appointment in the IDARNG based on his previous nonselections for promotion in the Naval Reserve. It was also noted that the applicant, at his request, had been previously transferred to the Retired Reserve of the Navy and should have known he was not in the inactive Naval Reserve even if he did not receive his official Retired Reserve orders. The request for a waiver was denied.

7. On 22 February 2001, the IDARNG revoked the applicant's appointment Orders 431-001, dated 31 July 1997, by Orders 407-042. On 27 April 2001, the IDARNG requested that the NGB grant an exception to policy to allow the applicant to be transferred to the Retired Reserve in lieu of revocation of his ARNG appointment. The request noted that there was no evidence that the applicant was suspected of fraud or misrepresentation in his ARNG appointment process. The Navy granted him a conditional release with the full understanding that it was for appointment in the ARNG. The Naval Reserve and the National Guard committed the administrative errors that led to the erroneous appointment.

8. The IDARNG request pointed out that the applicant had performed all unit and annual training periods expected of him and had additionally completed an officer advanced course and the Combined Arms Services Staff School. Additionally, the applicant had been issued his 20 Year Letter and there was no evidence that he could be denied his retired pay. A further concern was that the applicant would be required to pay back all pay received from the date of his erroneous appointment to the date his appointment was revoked, which would be a further injustice to the applicant.

9. The NGB responded to the IDARNG on 17 July 2001, and denied their request to transfer the applicant to the Retired Reserve. The NGB stated that the applicant's appointment had to be revoked since he was not eligible for appointment in the ARNG. Any issues concerning recoupment of pay should be addressed to the Defense Finance and Accounting Service (DFAS). The NGB noted that the applicant could apply to this Board for relief concerning credit for time served in an active status and award of retired pay.

10. Correspondence from the IDARNG to DFAS recommended a waiver of recoupment for pay received by the applicant. The DFAS response noted that there was no record of a debt to DFAS for the applicant.

11. In the processing of this case an advisory opinion was provided by the NGB. The opinion notes that there was no evidence of deceit during the appointment process on the part of the applicant and the IDARNG and the Naval Reserve accomplished the erroneous appointment. The opinion also notes that the applicant has now also been denied the opportunity to complete his 20 years of qualifying service in an enlisted status because of the erroneous appointment. The NGB concluded that the applicant should receive credit for his time served in the IDARNG, his 20-year letter should be honored, and he should be relieved of any indebtedness arising from the erroneous appointment action.

12. The applicant was provided an opportunity to respond to the NGB advisory opinion and on 21 October 2002 he concurred.

13. Department of Defense Instruction 1200.15 provides policy and guidance to the Military Departments under the authority of Title 10, US Code on transfer to the Retired Reserve of personnel who have completed the service required for nonregular retirement and the notification of members who have completed the years of service required for retired pay at age 60. It provides that after a person has been notified, in accordance with this Instruction that the member has completed the years of service required for eligibility for retired pay at age 60, that eligibility may not be denied or revoked on the basis of any error, miscalculation, misinformation, or administrative determination of years of service performed, unless it resulted directly from fraud or misrepresentation by the individual concerned.

14. Army Regulation 135-100 provides the policy on appointment of Army Reserve Component commissioned officers. It provides that a former Reserve commissioned officer that was twice passed over for promotion is ineligible for appointment.

DISCUSSION AND CONCLUSIONS:

1. The available evidence shows that the applicant acknowledged his nonselections for promotion in the Naval Reserve and requested transfer to the Retired Reserve. The applicant has stated that he never received notification of his transfer to the Retired Reserve.

2. When the applicant applied for appointment in the IDARNG, the Naval Reserve Personnel Center issued a conditional release to the applicant from his commissioned officer status in the Navy and acknowledged that it would become effective on his appointment in the ARNG. This notification also stated that the applicant could remain in a drilling status with the Naval Reserve through the day before he entered the gaining service. This notice appears to show that the Naval Reserve Personnel Center was not aware that the applicant had been transferred to the Retired Reserve or was ineligible for appointment in another service.

3. The IDARNG did not review the applicant's prior Navy service records for almost 3 years after he was appointed as a captain. Even after reviewing the applicant's Navy records and his initial ARNG appointment action, the IDARNG and the NGB could find no evidence of fraud or misrepresentation on the part of the applicant.

4. The applicant's appointment Orders 431-001, dated 31 July 1997, have been revoked by Orders 407-042, dated 22 February 2001, of the IDARNG. There is no available evidence to show that this action has resulted in a debt by the applicant to DFAS.

5. Based on all the circumstances in this case it appears that it would be equitable and just to recognize the IDARNG service and Federal Recognition status of the applicant from 16 July 1997 through 22 February 2001 with entitlement to all pay and allowances and retirement points earned during this period by revoking IDARNG Orders 407-042, dated 22 February 2001.

6. Since the applicant has received a discharge from the Naval Reserve and been issued a 20-year letter for eligibility for retired pay at age 60 by the IDARNG, it would also be in the interest of justice to show that he was transferred to the Retired Reserve of the Army effective 22 February 2001 and issued an honorable separation document (NGB 22) from the IDARNG showing his ARNG service and transfer to the Retired Reserve by reason of voluntary resignation.

BOARD VOTE:

___sk__ ___rd___ __lm____ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends, insofar as records of the Idaho Army National Guard are concerned, that the Adjutant General of the State of Idaho correct the records of the individual concerned:

         a. by revoking IDARNG Orders 407-042, dated 22 February 2001, that revoked the applicant's appointment in the IDARNG;

         b. by issuing orders that separate the applicant from the IDARNG effective 22 February 2001 and transfer him to the Retired Reserve in the rank of captain; and

         c. by issuing him an NGB 22 that shows he was separated from the IDARNG effective 22 February 2001 and transferred to the Retired Reserve by reason of voluntary resignation in accordance with NGR 635-100.




                  ____Stanley Kelley___
                  CHAIRPERSON

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INDEX

CASE ID	AR2004103071
SUFFIX
RECON
DATE BOARDED	20040406
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	136.03
2.
3.
4.
5.
6.