RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  29 April 2008
	DOCKET NUMBER:  AR20070011648 


	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.




Director



Analyst

      The following members, a quorum, were present:




Chairperson



Member



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 Federal Recognition in the Louisiana Army National Guard (LAARNG) be changed back to his original date of 9 March 2006 instead of the current date of 4 March 2007 that is reflected in his records. 

2.  The applicant states, in effect, that he was serving in the Naval Reserve as a nurse in the pay grade of O-3 when he was released from the Naval Reserve (USNR) on 8 March 2006 for the purpose of accepting a commission in the LAARNG in the rank of captain (CPT) on 9 March 2006.  He goes on to state that he took his oath on 9 March 2006 and participated in drills as an “M” Day Soldier. However, due to administrative processing errors, his application had to be resubmitted through recruiting channels and it was not until 4 March 2007 that his Federal Recognition was approved and he took another oath.  However, in the process, he has lost a year of retirement point credits through no fault of his own and essentially has a break in service. 

3.  The applicant provides copies of his initial appointment/transfer packet sent to the National Guard Bureau (NGB) in March 2006, his oaths of office in 2006 and 2007, his release from the Navy and his subsequent request to be reinstated to the Naval Reserve and the denial of his request, a copy of his Federal Recognition packet, and his Army Nurse Corps packet.  

CONSIDERATION OF EVIDENCE:

1.  The applicant initially enlisted in the LAARNG on 18 February 1988 and served as an operating room specialist.  He served in Southwest Asia during Operation Desert Storm and on 27 October 1992, he was honorably discharged from the LAARNG and was transferred to the United States Army Reserve (USAR) to complete his statutory service obligation.    

2.  On 25 November 2002, he was commissioned as a lieutenant junior grade
(O-2) nurse in the USNR and was assigned to the Naval Air Station in New Orleans, Louisiana.  He was promoted to the rank of lieutenant (O-3) on 1 October 2004.    

3.  On 1 March 2006, the applicant submitted a request for conditional release from the USNR for the purpose of accepting a commission in the LAARNG.  His request was approved by the Department of the Navy to be effective 8 March 2006.  The request provided that if the applicant did not accept an appointment in 
the LAARNG by 30 September 2006, the conditional release would be automatically revoked.  The applicant was honorably discharged from the USNR effective 8 March 2006.

4.  On 9 March 2006, the applicant executed his Oaths of Office (NGB Form 337) as a CPT in the LAARNG and acknowledged that he had been granted temporary Federal Recognition.  
  
5.  On 22 June 2006, the Office of the Adjutant General of the LAARNG, Army Medical Department (AMEDD) Strength Manager submitted a memorandum to the Navy Personnel Command requesting that his conditional release from the USNR be revoked and that he be returned to USNR status because due to an administrative processing error, the applicant had not been considered by a United States Army Recruiting Command (USAREC) AMEDD selection board prior to appointment as a nurse and his initial appointment packet had to be resubmitted and return to the USNR would prevent a break in service.   

6.  The outcome of that request is not in the available records; however, the applicant’s appointment packet was resubmitted and on 4 March 2007, he again executed his Oaths of Office as a CPT in the LAARNG under temporary Federal recognition.

7.  In the processing of this case a staff advisory opinion was obtained from the National Guard Bureau (NGB), Personnel Division which opines, in effect, that in accordance with National Guard Regulation (NGR) 600-100, chapter 2, AMEDD officers will not be granted temporary Federal Recognition prior to selection by a USAREC professional board.  Officials at the NGB also opine that he was erroneously accessed to the Army National Guard and that his request to receive credit for the year between when he was improperly accessed into the LAARNG and the time he was properly accessed was no justification for awarding him the credit, since he had only attended drills in April and June 2006.  However, officials at the NGB also state that the effective date of Federal Recognition for original appointment is that date in which the commissioned officer executes the Oaths of Office in the State.

8.  The advisory opinion was provided to the applicant for comment and to date no response has been received by the staff of the Board.

9.  National Guard Regulation 600-100 provides, in pertinent part, that the effective date of Federal recognition for original appointment is the date on which the commissioned officer executes the Oaths of Office in the State.
     
DISCUSSION AND CONCLUSIONS:

1.  Notwithstanding, the advisory opinion from the NGB indicating that the applicant should not be granted Federal Recognition on 9 March 2006 because he was not considered by an USAREC AMEDD Selection Board prior to his appointment in the LAARNG, the fact remains that the applicant took his oath on 9 March 2006 and he participated in unit drills.     

2.  It is also noted that the applicant was subsequently selected/accepted by the USAREC AMEDD Selection Board and there is no indication that the outcome would have been any different had it been done prior to 9 March 2006.  The fact that it was accomplished after-the-fact should have no bearing on his original appointment because he was already serving in the capacity for which he had been recruited and appointed.   

3.  While the applicant may not have been as active in his unit as he should have been, the evidence clearly shows that he relied on LAARNG AMEDD recruiting personnel to ensure that the necessary actions were taken for him to accept and serve in the LAARNG as a nurse and he deserves any and all points that he earned during the period from 9 March 2006 to 4 March 2007. 

4.  The Army has an obligation to ensure that all personnel it recruits receive professional treatment from the time they are recruited until the time they are separated from the service.  In doing so, they should not be penalized or disadvantaged by any administrative processes that are performed out-of-sequence when the outcome is the same as it would have been had it been done properly.  Additionally, it is not reasonable to presume that the applicant would have known the correct procedures to be accessed in the AMEDD when it is apparent that the AMEDD recruiter was not knowledgeable of the requirements.  Therefore, it is not reasonable to expect the applicant to bear the responsibility and/or burden for the Department’s error in this case.  

5.  Accordingly, it would be in the interest of justice to correct the applicant’s record to show that he was granted Federal Recognition on 9 March 2006 and that he receives all retirement points that he earned during the period from
9 March 2006 to 4 March 2007.






BOARD VOTE:

__XXX __  __XXX__  __XXX__   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 showing that the applicant was granted Federal Recognition on 9 March 2006, vice 4 March 2007, as currently reflected, and that he receive all retirement points he earned during the period from 9 March 2006 to 4 March 2007.




      ___        XXX                ___
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20070011648



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
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