IN THE CASE OF:	  

	BOARD DATE:	  

	DOCKET NUMBER:  AR20070008874 


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, in effect, adjustment to his date of rank for Major to 16 August 2006.

2.  The applicant states, in effect, that his initial promotion packet was submitted on that date.  He also states that due to no fault of his own, initial Federal recognition was never received when he transferred from the New York Army National Guard (NYARNG).  He was unaware of this until it was time for him to get promoted to Major.  His unit submitted a vacancy promotion packet on him which was declined because his Federal recognition was not received.  He does not feel he should be penalized for recruiting not doing their job.  Then, due to his date of rank being adjusted, he was considered by a Department of the Army board and could not be promoted until the results were released.

3.  In support of his application, the applicant provides a copy of a Memorandum. Subject:  Recommendation for Promotion of Officer, dated 21 June 2006; a Commissioned Officer Promotion Checklist; a Personnel Qualification Record – Officers/Warrant Officers, prepared 21 June 2006; a DA Form 705, Army Physical Fitness Test Scorecard; a DA Form 1059, Service School Academic Evaluation Report, dated 24 September 2004; nineteen medically-related documents, with various dates; Orders 228-893, Joint Forces Headquarters, Tennessee National 

Guard, dated 16 August 2006; Special Orders 110 AR, dated 7 May 2007; DA Form 5074-1-R (Record of Award of Entry Grade Credit (Health Service Officers)), dated 6 December 2006 and approved on 12 January 2007; Orders 136-800, Joint Forces Headquarters, Tennessee National Guard, dated 16 May 2007; and Orders 119 AR, dated 18 May 2007.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was appointed in the NYARNG, Medical Service Corps, as a Second Lieutenant, effective 18 December 1986.  He was promoted to First Lieutenant on 17 December 1989 and to Captain on 30 July 1993.  The applicant was released from the NYARNG on 15 April 1997 and was transferred to the United States Army Reserve (USAR) Control Group (Reinforcement).

2.  The evidence shows the applicant enlisted in the Tennessee ARNG (TNARNG), as a Sergeant, pay grade E-5, on 18 May 1998.  He was honorably discharged from the TNARNG, in pay grade E-5, effective 30 September 2000.  The applicant was appointed in the TNARNG, Medical Service Corps, in the rank of Captain, on 1 October 2000.

3.  The applicant submits a copy of a Memorandum, Subject:  Recommendation for Promotion of Officer that shows he was recommended for promotion to Major against a position vacancy.  In addition, he submits a copy of a corresponding Commissioned Officer Promotion Checklist and promotion packet.

4.  Orders Number 228-893, dated 16 August 2006, which the applicant submitted, announce his promotion to Major with an effective date of 16 August 2006.

5.  The evidence of record shows on 16 November 2006, a Federal Recognition Examining Board considered and accepted the applicant for appointment in the TNARNG, Medical Service Corps, in the rank of Captain.

6.  A DA Form 5074-1-R, dated 12 January 2007, shows that the applicant was awarded 7 years constructive service credit and qualified for appointment in the rank of Captain.  He was extended Federal recognition with an initial appointment as a Captain in the TNARNG effective 16 November 2006 by Special Orders Number 110 AR, dated 7 May 2007.

7.  The applicant was promoted to Major effective 16 May 2007.  Special Orders Number 119 AR, dated 18 May 2007, show he was extended Federal Recognition in the grade of Major with an effective date of 18 May 2007.

8.  In the processing of this case, an advisory opinion was requested of the Departments of the Army and Air Force, National Guard Bureau, Personnel Division.

9.  In the advisory opinion, dated 16 October 2007, that was provided, the Chief, Personnel Division, reiterated the applicant's request.  The Chief, Personnel Division, recommended approval of the applicant's request based on the NGB, Office of the Division Surgeon's Medical Section's comments.

10.  The NGB, Office of the Division Surgeon's Medical Section's, stated that the applicant had been re-appointed on 20 September 2000, with an effective date of 1 October 2000, but the re-appointment was not valid because he had not been boarded by the United States Army Recruiting Command (USAREC).  In order for him to be re-appointed as a Medical Service Corps officer and in accordance with Army Regulation 135-101, the Army Medical Department (AMEDD) recruiter in the state would have been required to prepare an initial appointment packet to be boarded at USAREC.  The applicant was assigned and performed as an AMEDD officer from 20 September 2000 until he was properly boarded by USAREC and 
re-appointed on 16 November 2006.  The NGB, Office of the Division Surgeon's Medical Section's opined that had the applicant not been misadvised that he had to resign his commission prior to transferring from the USAR Control Group to the TNARNG, he would have been accessed in the TNARNG as a Captain in May 1998, with a date of rank of 30 July 1993.

11.  The NGB official also stated that based on the aforementioned and had the applicant been properly accessed from the USAR, he would have had the opportunity to be considered for promotion to Major in 2000, by a DA board.  It should also be noted, they added, that the applicant had not completed the Combined Arms and Service Staff School or an Advanced Officer Course in 2000, so had he been selected for promotion by a 2000 DA board, he would not have been promotable.  The applicant completed the Health Services, Plans, Operations, Intelligence, Section and Training, on 24 September 2004 (70H) and would have met the military educational requirements; he also possessed a Master of Fine Arts and would have met the time in grade requirements for promotion to Major.  The Chief, Personnel Division official further stated that 

the State's failure to properly reappoint the applicant was administrative and was through no fault of the applicant.  He continued to perform as an AMEDD officer and was unaware that his appointment was not valid.

12.  Based on the foregoing, the NGB's Chief, Personnel Division, recommended the applicant's date of rank for Major be adjusted to 16 August 2006.

13.  The advisory opinion was forwarded to the applicant for acknowledgement and/or rebuttal on 17 October 2007 and he concurred on 23 October 2007.

DISCUSSION AND CONCLUSIONS:

1.  The applicant records show he served as a Medical Service Corps officer in the NYARNG from 18 December 1986 to the date of his release from the NYARNG as a captain on 15 April 1997.  He was transferred to the USAR Control Group (Reinforcement) on this date.

2.  The applicant was erroneously informed that to enter the TNARNG he was required to resign his commission.  He resigned his commission and enlisted in the TNARNG, as a Sergeant, on 18 May 1998.  On 30 September 2000, he was honorably discharged from the TNARNG, in pay grade E-5.  On 1 October 2000, he was appointed a commissioned officer, in the rank of captain, in the TNARNG, in the Medical Service Corps.

3.  The evidence submitted by the NGB in their advisory opinion shows that at the time of his appointment on 1 October 2000, USAREC did not cause the applicant to be properly boarded and federally recognized in his appointment rank as a Captain.  Thus, his 16 August 2006 promotion to Major was in error.

4.  The applicant was recommended for and was promoted to major against an open position vacancy.  Orders were published announcing his promotion to Major with an effective date of 16 August 2006.

5.  On 16 November 2006, a Federal Recognition Examining Board considered and accepted the applicant for appointment in the TNARNG, Medical Service Corps, in the rank of Captain.

6.  A DA Form 5074-1-R, dated 12 January 2007, shows that the applicant was awarded 7 years constructive service credit and qualified for appointment in the rank of Captain.  He was extended Federal recognition with an initial appointment as a Captain in the TNARNG effective 16 November 2006 by Special Orders Number 110 AR, dated 7 May 2007.
7.  The applicant was promoted to Major thereafter with an effective date of 16 May 2007.  Special Orders Number 119 AR, dated 18 May 2007, show he was extended Federal Recognition in the grade of Major with an effective date of 18 May 2007.

8.  Based on the circumstances presented and the evidence in this case, and as a matter of equity and on the support for favorable consideration expressed by the NGB, Personnel and Personnel Policy and Readiness Divisions, the applicant's records should be corrected to show he was promoted to Major effective 16 August 2006, with entitlement to all back pay and allowances.

9.  An administrative error in the processing of his reappointment altered his date of rank for Major due to no fault on the part of the applicant and he should not be penalized for this action.  The applicant was unaware that an error had been made on his reappointment which in effect invalidated this action.  Even though the reappointment was not valid, he continued to perform in good faith as an AMEDD officer.

10.  Based on the evidence in this case, Special Orders Number 110 AR, dated 7 May 2007; Orders Number 136-800, dated 16 May 2007; and Special Orders Number 119 AR, dated 18 May 2007, should be declared void and of no force or effect and the applicant's date of rank should be adjusted to 16 August 2006.

11.  In view of the foregoing, the applicant’s TNARNG and Department of the Army records should be corrected as recommended below.

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 all Department of the Army records of the individual concerned be corrected by:

      a.  showing that the applicant was promoted to Major effective 16 August 2006, with entitlement to back pay and allowances; and 
      
	b.  voiding Special Orders Number 110 AR, dated 7 May 2007; Orders Number 136-800, dated 16 May 2007; and Special Orders Number 119 AR, dated 18 May 2007; and declaring them to be of no force or effect.



      _________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)                                         AR20070008874



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1