IN THE CASE OF:	  

		BOARD DATE:	  28 August 2008

		DOCKET NUMBER:  AR20080002105 


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, an adjustment to his captain (CPT) date of rank (DOR).  

2.  The applicant states, in effect, that in March 2001, after transferring to an Engineer Battalion of the Kentucky Army National Guard (KYARNG), after being asked, he accepted command of E Company, 2006th Engineer Battalion.  In April 2001, he was notified that he was recommended for promotion.  He claims that had he received notification of his promotion in February 2001, he would have been transferred to a staff position, where he could have become branch qualified and promoted.  He further states he receive no career counseling except to be told he had to be branch qualified, and while in command, he did not complete the officer advance course (OAC) and did not become branch qualified. He states that as a result of frustration over how this was handled and his decision to start his own business, he resigned his commission.  

3.  The applicant states that in early 2005, he was asked to come back to the KYARNG, and he did.  He states that since his return, he has executed an excellent training program, as attested to by Soldiers in Iraq, and as the battalion S-4, his unit mobilized to support Hurricane Katrina relief.  Upon his return, he was asked to take command of Headquarters and Headquarters Company, 201st Engineer Battalion, which was mobilized in support of Operation Jump Start in Arizona.  The applicant indicates he is currently training with the 201st Engineer Battalion in preparation for mobilization in support of Operation Enduring Freedom in Afghanistan. 

4.  The applicant also indicates that he has completed the Engineer OAC and the Combined Arms Exercise Course, which is all the military education required for promotion to his next grade, and he is looking to begin a master's degree program, and will continue to seek demanding assignments.  He further states that he feels since he has returned to duty, he has stepped up to the plate and he is requesting an amendment to his DOR, which would add 2 years, 3 months, and 29 days to his current time in grade with or without pay.

5.  The applicant provides the following documents in support of his application:  Self-Authored Statement; Certificate of Completion RG Engineer Officer Advance Course Phase I; Certificate of Training; Service School Academic Evaluation Report (DA Form 1059); Certificate of Graduation; United States Total Army Personnel Command Memorandum, dated 26 April 2001; Boone National Guard Center, Frankfort, Kentucky; Orders Number 072-802, dated 13 March 2001; Department of Army and the Air Force National Guard Bureau, Special Orders 132 AR, dated 22 May 2003 and Special Orders Number 340 AR, dated 
2 December 2005; and National Guard Bureau, Orders 304-1, dated 31 October 2003.

CONSIDERATION OF EVIDENCE:

1.  National Guard Bureau (NGB) Special Orders Number 68, dated 14 April 1998, appointed and granted the applicant Federal Recognition as a First Lieutenant (1LT) in the Ohio National Guard (OHARNG), effective 23 December 1996.  

2.  NGB Special Orders Number 20 AR, dated 23 February 2000, transferred the applicant from the OHARNG to the KYARNG, effective 16 January 2000.

3.  United States Total Army Personnel Command Memorandum, dated 26 April 2001, notified the applicant that he was selected for promotion to CPT as a Reserve Commissioned Officer not on Active Duty.

4.  Boone National Guard Center, Frankfort, Kentucky (KY), Orders Number 
092-812, dated 2 April 2003, promoted the applicant to CPT, effective 22 May 2003, and NGB Special Orders Number 132 AR, dated 22 May 2003, granted the applicant Federal Recognition in the rank of CPT, effective 22 May 2003.

5.  Boone National Guard Center, Frankfort KY, Orders Number 303-802, dated 
30 October 2003, separated the applicant from the Army National Guard and the Reserve of the Army, by reason of voluntary request of the applicant.  

6.  NGB Special Orders Number 304-1, dated 31 October 2003, honorably discharged the applicant from the KYARNG, effective 31 October 2003.
7.  NGB Special Orders Number 277 AR, dated 31 October 2003, honorably discharged and withdrew the applicant's Federal Recognition.

8.  The applicant's Official Military Personnel File (OMPF) contains a Certificate of Completion which shows he successfully completed the Reserve Component Engineer OAC (Phase 1) on 29 March 2004.

9.  NGB Special Orders Number 340 AR, dated 2 December 2005, extended the applicant permanent Federal Recognition in the KYARNG for initial appointment to the grade of captain, 23 June 2005.

10.  The applicant's OMPF contains a Certificate of Training, which shows he successfully completed the Engineer Captain's Career Course-Reserve Component, Class 5-05, Phase II, on 12 August 2005.

11.  In connection with the processing of this case, an advisory opinion was requested of and received from the Chief, Personnel Division, NGB.  This official states that by regulation upon the applicant's appointment on 23 June 2005, he should have received service credit for his prior commissioned officer service and that his CPT DOR should be adjusted to 16 January 2005.

12.  On 21 May 2008, a copy of the advisory opinion was forwarded to the applicant in order to provide him the opportunity to reply/rebut its contents.  To date, he has failed to respond.  

13.  National Guard Regulation 600-100 (Commissioned Officers-Federal 
Recognition and Related Personnel Actions) prescribes the policies and procedures governing the appointment, assignment, temporary Federal Recognition, Federal Recognition, reassignments, transfers between States, branch transfers, area of concentration designation, utilization, branch detail, attachment, and separation of commissioned officers of the ARNG.  Paragraph 1-7 contains guidance on appointment grade and states that Federal Recognition and initial Reserve of the Army appointment will be limited to the grade of second lieutenant except for those individual who are entitled to two or more years of constructive service credit under Title 10 of the United States Code, Section 12207 (10 USC 12207).  Paragraph 2-1 states, in pertinent part, that prior service personnel who are receiving service credit, must have their Reserve of the Army grade determined in accordance with 10 USC 12027.  


14.  Paragraph 2-2 of the same regulation states, 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.  Federal Recognition will continue in effect as long as the commissioned officer continues to meet requirements of the grade and position or until recognition is withdrawn in accordance with regulations, or as otherwise provided by law.  

15.  Title 10 of the United States Code, Section 12207 (10 USC 12207) states, in pertinent part, that for the purpose of determining the grade and rank within grade of a person receiving an original appointment as a reserve commissioned officer (other than a commissioned warrant officer) in the Army, Navy, Air Force, or Marine Corps, the person shall be credited at the time of the appointment with any commissioned service (other than service as a commissioned warrant officer) performed before such appointment as a regular officer, or as a reserve office in an active status, in any armed force the National Oceanic and Atmospheric Administration, or the Public Health Service.  Prior commissioned officer service credit beyond the 4 years necessary to be appointed a captain will be credited for date of rank purposes.  

DISCUSSION AND CONCLUSIONS:

By law and regulation, a member will receive service credit for prior commissioned officer service upon appointment.  The evidence of record confirms that at the time of his 23 June 2005 appointment to CPT, the applicant had previously served in the rank of CPT for 5 months and 9 days, for which he should have been credited.  As a result, his CPT DOR should have been established as 14 January 2005 at that time.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x___  ___x____  ___x____  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 showing that upon his 23 July 2005 appointment as a captain in the Kentucky Army National Guard, he was credited with 5 months and 9 days of prior commissioned officer service credit as a captain, and that his captain date of rank was established as 14 January 2005. 

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 adjusting his captain date of by 2 years, 3 months and 29 days. 




      _______ _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)                                         AR20080002105



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ABCMR Record of Proceedings (cont)                                         AR20080002105


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