RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  20 February 2008
	DOCKET NUMBER:  AR20070013881 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Mohammed R. Elhaj

Analyst

The following members, a quorum, were present:


Mr. Patrick H. McGann, Jr.

Chairperson

Ms. Eloise C. Prendergast

Member

Mr. Michael J. Flynn

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 advancement on the permanent disability retired list (PDRL) from the grade of captain (CPT)/O-3 to the grade of colonel (COL)/O-6 effective 27 October 1982 and restoration of back pay appropriate to the advanced grade. 

2.  The applicant states that on 27 October 1982, he was appointed by order of the Governor of the State of Wisconsin and the State of Wisconsin Department of Military Affairs to the grade of COL/O-6, as an Aide-de-Camp to the Staff of the Governor.  He held this appointed position for a few years and later the position was abolished.  He sees this appointment as a recognized position of rank and title with Federal recognition as an office of the Army National Guard.  He concludes that he served long enough as a COL/O-6 Aide-de-Camp to qualify for advancement.   

3.  The applicant provided the following additional documentary evidence in support of his application:

	a.  State of Wisconsin, Department of Military Affairs, Orders 210-1, dated 27 October 1982, Appointment Orders.

	b.  Excerpts of State of Wisconsin, Department of Military Affairs Manual 21.025, Chapter 21.  

	c.  Excerpt from Field Manual (FM) 6-0 (Mission Command: Command and Control of Army Forces, dated August 2003.

	d.  Excerpt from Department of the Army Pamphlet (DA PAM) 27-50-355 (The Army Lawyer), dated August 2002.

	e.  Excerpts of United States Code, Title 32, Section 323, National Guard, Personnel, Withdrawal of Federal Recognition.

	f.  Excerpts of 1987 Wisconsin Act 63, dated 23 November 1987.

	g.  Excerpts of 2003 Wisconsin Act 69, dated 25 November 2003.





CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's records show that he enlisted in the Regular Army on 27 June 1966 for a period of 3 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11F (Infantry Operations and Intelligence Specialist).  The highest rank he attained during his enlisted military service was specialist five (SP5)/E-5.  He was honorably discharged from the Regular Army on 25 June 1967 to accept an appointment as a commissioned officer.  

3.  On 26 June 1967, the applicant was appointed as an Infantry Reserve commissioned officer of the Army, in the grade of 2nd lieutenant (2LT)/O-1.  He was subsequently promoted to 1st lieutenant (1LT)/O-2 and captain (CPT)/O-3 and changed branches from Infantry to Aviation.  His records further show that he served in the Republic of Vietnam during the period 22 September 1968 through 11 September 1969.

4.  On 11 May 1971, a Medical Evaluation Board found the applicant medically unfit due to vascular headaches and referred him to a Physical Evaluation Board (PEB) that subsequently convened on 8 June 1971 and found the applicant was physically unfit due to vascular headaches.  He applicant was rated under the DVA Schedule for Rating Disabilities (VASRD) code 8100 and granted a 30 percent disability rating.  The PEB also recommended the applicant be permanently retired from the service.  

5.  Office of the Adjutant General, Washington, D.C. Letter Orders Number D8-1182, dated 11 August 1971, show that the applicant was placed on the permanent disability retired list effective 17 August 1971, in the retired grade of CPT/O-3, with a 30 percent disability, under the authority of Section 1201, Title 10, United States Code.  The Letter Orders also stated that on the date he was placed on the retired list, he was transferred to the U.S. Army Reserve (Retired Reserve) and assigned to the U.S. Army reserve Control Group (Retired).  The DD Form 214 he was issued confirms he was honorably retired by reason of permanent physical disability.  This form further confirms that he completed a total of 5 years, 2 months, and 21 days of creditable active military service.

6.  On 27 October 1982, the State of Wisconsin, Department of Military Affairs, published Orders 210-1, appointing the applicant as an Aide-de-Camp, on the military staff of the Governor of Wisconsin, in the grade of COL/O-6, effective 1 November 1982.  

7.  The applicant's records do not show that he was appointed as a Reserve commissioned officer or extended Federal recognition after his retirement from the Army. 

8.  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 of this regulation, states in pertinent part, that commissioned officers of the ARNG are appointed by the several 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.

9.  Paragraph 7-1 of NGR 600-200 states, in pertinent part, that duty details are generally a command function.  However, their use must meet the prescribed regulations and accepted officer personnel management practices.  The authority to detail officers to duty in the categories General Staff with troops, Inspector General, Adjutant, or Aide-de-camp is a function of the State Adjutants General and may be further delegated to general officer commands.  A duty detail does not affect the branch in which commissioned officer is assigned or appointed.  Each general officer occupying a position in an approved Modified Table of Organization and Equipment (MTOE) may be assigned an aide-de-camp when authorized.  Each general officer occupying the position of Adjutant General or occupying a command position in an approved Table of Distribution and Allowances (TDA) may be assigned an aide-de-camp, when authorized.        


10.  Paragraph 8-1 of NGR 600-200 states, in pertinent part, that the promotion of officers in the ARNG is a function of the State.  As in original appointment, a commissioned officer promoted by State authorities has a State status in the higher grade under which to function.  However, to be extended Federal recognition in the higher grade, the officer must have satisfied the prescribed requirements for Federal recognition.  Wearing the higher grade is not authorized until the Chief, National Guard Bureau has extended Federal recognition in the higher grade.

11.  Chapter 10 of NGR 600-200 prescribes the policies of Federal Recognition Boards for other than general officers.  It states, in pertinent part that commissioned officers of the ARNG are appointed by the States under Article 1, Section 8, of the U.S. Constitution.  In order for an officer to be concurrently appointed, promoted, and receive a branch transfer as a Reserve commissioned officer of the Army, the State action must be federally recognized.  Federal recognition action is the acknowledgement by the Federal government that an officer appointed, promoted, or transferred to an authorized grade and position vacancy in the ARNG and meets the prescribed laws and regulations.  Under Section 307, Title 32, United States Code, a board of officers will be convened to determine whether applicants to Federal recognition meet the medical, moral, and professional qualifications to perform the duties of the grade and position for which examined.  A commissioned officer who is federally recognized is tendered an appointment as a Reserve commissioned officer of the Army with assignment to the ARNG.  A Federal Recognition Board (FRB) is appointed by the numbered Continental U.S. Army (CONUSA) commanders having jurisdiction.  Appointments are made for the Secretary of the Army, but the authority may be delegated.  The Senior Regular Army Advisor (SRAA) is the delegated authority to appoint FRBs and sign the appointment order for the CONUSA Commander. 

12.  Section 1201 of Title 10, United States Code, states, in pertinent part, that upon a determination by the Secretary concerned that a member of a regular component of the armed forces entitled to basic pay, or any other member of the armed forces entitled to basic pay who has been called or ordered to active duty (other than for training under section 10148(a) of this title) for a period of more than 30 days, is unfit to perform the duties of his office, grade, rank, or rating because of physical disability incurred while entitled to basic pay, the Secretary may retire the member, with retired pay computed under section 1401 of this title. 

13.  Section 1202 of Title 10, United States Code, states, in pertinent part, that upon a determination by the Secretary concerned that a member described in section 1201(c) of this title would be qualified for retirement under section 1201 of this title but for the fact that his disability is not determined to be of a permanent nature and stable, the Secretary shall, if he also determines that accepted medical principles indicate that the disability may be of a permanent nature, place the member's name on the temporary disability retired list, with retired pay computed under section 1401 of this title. 

14.  Section 1370 of Title 10, United States Code, states in part, that Reserve officers, unless entitled to a higher grade, be credited with satisfactory service in the highest grade in which that person served satisfactorily at any time in the armed forces.  In order to be credited with satisfactory service in an officer grade (other than a warrant officer grade) at the grade of lieutenant colonel, a person must have served on active duty satisfactorily in that grade (as determined by the Secretary of the military department concerned) as a Reserve commissioned officer in an active status, or in a retired status on active duty, or must have served on active duty in that grade for not less than three years, except that the Secretary of Defense may authorize the Secretary of a military department to reduce such period to a period not less than two years.

15.  Section 1372 of Title 10, United States Code, states, in pertinent part, that unless entitled to a higher retired grade under some other provision of law, any member of an armed force who is retired for physical disability under Section 1201 or 1204 of this title, or whose name is placed on the temporary disability retired list under section 1202 or 1205 of this title, is entitled to the grade equivalent to the highest of the following: 

	(1) The grade or rank in which he is serving on the date when his name is placed on the temporary disability retired list, whichever is earlier; 

	(2) The highest temporary grade or rank in which he served satisfactorily, as determined by the Secretary of the armed force from which he is retired; 

	(3) The permanent regular or reserve grade to which he would have been promoted had it not been for the physical disability for which he is retired and which was found to exist as a result of a physical examination for promotion; and

	(4) The temporary grade to which he would have been promoted had it not been for the physical disability for which he is retired, if eligibility for that promotion was required to be based on cumulative years of service or years of service in grade and the disability was discovered as a result of a physical examination for promotion.  


16.  Section 3961 of Title 10, United States Code, states, in pertinent part that (a) the retired grade of a regular commissioned officer of the Army who retires other than for physic disability, and the retired grade of a reserve commissioned officer of the Army who retires other than for physical disability, is determined under section 1370 of this title; and (b) unless entitled to a higher retired grade under some other provision of law, a Regular or Reserve of the Army not covered by subsection (a) who retires other than for physical disability retires in the regular or reserve grade that he holds on the date of his retirement.

17.  Army Regulation 635-200 (Personnel Separation) provides for the placement of enlisted soldiers on the retired list.  Paragraph 12-4 of this regulation in effect at the time, required that the retirement of a Soldier be in the pay grade he or she holds on the date of retirement.  Paragraph 12-5b states that an enlisted member who holds a reserve commission, who has more than 20 but less than 30 years of active service, may elect to be transferred to the Retired Reserve in either their enlisted or commissioned status.  If the enlisted status is chosen, the Soldier’s commission is vacated upon his or her transfer to the Retired Reserve since a Soldier cannot hold more than one status as a reservist.  Once the Soldier makes the election and is retired, the election cannot be changed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests advancement to the grade of COL/O-6 on the Retired List and restoration of back pay appropriate to the advanced grade. 

2.  There are three issues involved in the applicant’s situation: appointment as a Reserve commissioned officer, Federal recognition, and promotion on the Retired List.  

a.  With respect to the applicant’s appointment, there is no evidence in the available records and the applicant did not provide any evidence showing that he was tendered an appointment as a reserve commissioned officer of the Army upon his appointment by the State of Wisconsin.  Additionally, the fact that he was and continues to be on the PDRL automatically disqualified him from any appointments as a Reserve commissioned officer.  

b.  With respect to the applicant’s Federal recognition, there is no evidence in the available records and the applicant did not provide any evidence showing that he was tendered Federal recognition as a Reserve commissioned officer of the Army with assignment to the ARNG.  In order for an officer to be concurrently appointed as a Reserve commissioned officer of the Army, the State action must be federally recognized.  Federal recognition action is the acknowledgement by the Federal government that an officer appointed to an authorized grade and position vacancy in the ARNG and meets the prescribed laws and regulations.   

c.  With respect to the applicant’s promotion on the retired list, evidence of record shows that during the applicant's active duty service, he served and retired as a CPT/O-3.  There is no evidence in the applicant's records and the applicant did not provide any evidence showing he was promoted beyond the grade of CPT/O-3 or that he served on active duty in any grade beyond that of CPT/O-3 during his military service. 

3.  Based on the fact that the applicant retired from active duty in the grade of CPT/O-3, was never appointed as a Reserve commissioned officer in the grade of COL/O-6 after his retirement, and was never tendered Federal recognition in the grade of COL/O-6, the applicant is not entitled to relief.   

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__phm___  __ecp___  __mjf___  DENY APPLICATION

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.




							Patrick H. McGann, Jr.
______________________
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.