IN THE CASE OF:	  

		BOARD DATE:	      6 AUGUST 2009

		DOCKET NUMBER:  AR20080010805 


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 that his Federal Recognition date be backdated to 29 September 2004 and that his Federal Recognition date as a Medical Service Corps (MS) officer be back dated to 23 February 2006.  He also request that his promotion to the rank of first lieutenant (1LT) be corrected based on the correction of his Federal Recognition date.

2.  The applicant states that he actively drilled as a second lieutenant (2LT) since September 2004 and he completed the MS officer basic course in October 2007.  He goes on to state that his promotion packet for promotion to 1LT was forwarded to the National Guard Bureau (NGB) in November 2007.  He also states that the National Guard's Army Medical Department (AMEDD) recruiting officer contacted him to appear before a Federal Recognition Board in December 2007, which he did.

3.  The applicant provides a copy of his NGB Form 0122E (Federal Recognition Orders), a copy of Orders Number 069-810 appointing him to the rank of 2LT in the MS, and a copy of his DA Form 1059 (Service School Academic Evaluation Report).

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the North Carolina Army National Guard (NCARNG) in the pay grade of E-4 on 5 June 1997 for a period of 8 years and training as a cannon crewman.

2.  On 21 August 2004, the applicant was commissioned as a second lieutenant in the NCARNG upon graduation from Officer Candidate School (OCS).  He was detailed to the Engineer Branch and appointed as a United States Army Reserve (USAR) 2LT, effective the same date.  Subsequently he was granted Federal Recognition as a 2LT effective 21 August 2004.

3.  The applicant branch transferred to the MS and was discharged from the NCARNG on 22 February 2006.  On 23 February 2006, he was appointed as an MS 2LT in the NCARNG and USAR and a Federal Recognition Examining Board was convened in Raleigh, North Carolina to determine if the applicant was qualified for Federal Recognition as an MS 2LT.  There is no evidence to show this action was processed to completion.  He completed the MS Officer Basic Course (OBC) at Fort Sam Houston, Texas on 5 October 2007.

4.  On 6 December 2007, he again took the oath of office as an MS 2LT in the NCARNG and Federal Recognition was granted effective the same date.  The applicant was subsequently granted constructive credit of 9 months and 1 day based on an initial appointment date of 6 December 2007 with an adjusted DOR of 5 March 2007.

5.  On 16 June 2009, a memorandum was published by the Human Resources Command - St. Louis (HRC-STL) which announced the applicant's appointment as a Reserve Commissioned Officer of the Army in the MS and in the rank of 2LT with a Date of Rank (DOR) of 5 March 2007.

6.  In the processing of this case a staff advisory opinion was obtained from the NGB, Arlington, Virginia, which recommends approval of the applicant's request to adjust his Federal Recognition DOR to 21 May 2005 and to promote him to 1LT effective 5 October 2005 with entitlement to all back pay and allowances based on this adjustment.  The recommendation was based on the applicant's prior commissioned service and the fact that he was entitled to constructive credit for service as an MS officer.  The advisory opinion was provided to the applicant for comment and he concurred with the opinion as written.

7.  Department of Defense Instruction (DODI) 6000.13, paragraph 6.1.1, credit for prior service as a commissioned officer (other than as a commissioned warrant officer) shall be granted to recognize previous commissioned experience, while maintaining cognizance of the level of professional knowledge, skill, and experience required at specific rank levels of each health profession.  Additionally, paragraphs 6.2.1, 6.2.2 and 6.2.2.2 states a person granted service credit under this Instruction and placed on the active duty list or the Reserve Active Status List (RASL) of a Military Service may have an entry grade determined by comparing entry grade credit with the currently established promotion phase points of the Military Service and officer category concerned.

8.  In accordance with Army Regulation 135-101 and the Army National Guard Office of the Surgeon General's Division, Personnel Management guidance, an MS officer will receive one-half year of credit for every year served in a commissioned status prior to appointment.  This credit is pro-rated for periods less than 1 year.

9.  In accordance with the Reserve Officer Personnel Management Act (ROPMA), paragraph 2-3a, second lieutenants will be considered for promotion to the rank of first lieutenant prior to reaching 24 months of commissioned service so that they can be promoted timely upon reaching 24 months of commissioned service, provided they are qualified in accordance with National Guard Regulation (NGR) 600-100.

10.  NGR 600-100 provides in paragraph 8-1 that the promotion of officers in the Army National Guard is a function of the State.  As in original appointments, a commissioned officer promoted by State authorities has a State status in the higher grade under which to function.  However, in order to be extended Federal Recognition in the higher grade, the officer must have satisfied the requirements.   

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his original Federal Recognition date should be backdated to 29 September 2004 has been considered and appears to lack merit.  The applicant's original date of Federal Recognition was 21 August 2004 as an Engineer Corps 2LT and it coincides with the date he took his oath of office as a 2LT.  He has failed to show this date was inaccurate or unjust.

2.  It appears that when the applicant branch transferred to the MS on 
22 February 2006, a Federal Recognition Examining Board was convened to consider the applicant for Federal Recognition as an MS 2LT.  However, for reasons not explained in the available records, that action appears not to have been processed to completion and it delayed the applicant's Federal Recognition as an MS 2LT until 6 December 2007 which results in an adjustment of his DOR to 5 March 2007.  Additionally, it delayed his eligibility for promotion to the rank of 1LT.

3.  It appears, had the original Federal Recognition paperwork been processed to completion when he was appointed as an MS 2LT, on 22 February 2006, he would have been granted Federal Recognition effective 22 February 2006, with a DOR of 21 May 2005, based on his prior commissioned service.  Accordingly, the applicant would have also been eligible for promotion to the rank of 1LT, effective 5 October 2007, based on completion of the MSC OBC on 5 October 2007.

4.  Accordingly, it would be in the interest of justice to correct his records by adjusting his Federal Recognition date as a 2LT in the MS to an effective date of 22 February 2006 with a DOR of 21 May 2005 and promoting him to the rank of 1LT effective 5 October 2007 with entitlement to all back pay and allowances due as a result of these changes.

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 State Army National Guard records and the Department of the Army records of the individual concerned be corrected as appropriate by:

	a.  amending NGB Special Orders Number 126 AR, dated 15 May 2008, to show he was extended Federal Recognition as a 2LT, effective 22 February 2006; with a DOR of 21 May 2005; and

	b.  showing he was extended Federal Recognition as a 1LT, with an effective date and DOR of 5 October 2007 and entitlement to all back pay and allowances as a result of these changes.










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 changing the date of his initial Federal Recognition to 29 September 2004.  




      _______ _   _____XXX__   ___
       	   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)                                         AR20080010805



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ABCMR Record of Proceedings (cont)                                         AR20080010805



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