BOARD DATE:	  6 August 2009

		DOCKET NUMBER:  AR20080011801 


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, that his records be corrected to show that he was transferred to the United States Army Reserve (USAR) Control Group (Annual Training) during the period of 3 November 2002 through 3 January 2007, that he was granted retirement points for that period, and that he was promoted to the rank of first lieutenant (1LT) on 24 January 2003.

2.  The applicant states, in effect, that he was appointed as a second lieutenant (2LT) in the Minnesota Army National Guard (MNARNG) on 24 January 2001. He was honorably discharged from the MNARNG and was erroneously transferred to the USAR Control Group (Retired) instead of the USAR Control Group (Annual Training) on 2 November 2002.  He goes on to state that as a result of this error, he was not promoted in the USAR and did not accumulate any retirement points credit.  He also states that he has again been appointed in the MNARNG in the rank of 2LT on 3 January 2007 and desires his date of rank (DOR) be adjusted based on his prior Reserve service.

3.  The applicant provides a copy of his college transcripts and diploma; a copy of a National Guard Bureau (NGB) Form 62E (Application for Federal Recognition as an Army National Guard Officer or Warrant Officer and Appointment as a Reserve Commissioned Officer or Warrant Officer of the Army in the Army National Guard of the United States); a copy of his appointment orders in the MNARNG in the rank of 2LT; a copy of an NGB Form 337 (Oaths of Office) as a 1LT in the MNARNG, dated 3 January 2007; a copy of an ARNG Retirement Points History Statement, dated 11 March 2008; a copy of Federal recognition orders showing his Federal recognition was withdrawn on                  2 November 2002; a copy of Federal recognition orders showing his initial appointment as a 2LT on 24 January 2001; a copy of orders discharging him from the MNARNG and transferring him to the USAR Control Group (Retired); a copy of orders amending the previous orders and transferring him to the USAR Control Group (Annual Training); a copy of Federal recognition orders showing he was granted Federal recognition as a 2LT in the MNARNG on 3 January 2007; a copy of Federal recognition orders promoting him to the rank of 1LT effective 4 January 2007; a copy of his automated Personnel Qualification Record, an NGB Form 60 (Request for Clearance); a form titled, "REDD [Recruiter Eligibility Data Display] Response"; an NGB Form 22 (Report of Separation and Record of Service); a copy of his diploma for completion of the officer basic course; and other separation-related documents.

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 was born on 28 June 1962 and enlisted in the MNARNG on 8 September 1981 for a period of 6 years and a cash enlistment bonus.  He continued to serve until he was honorably discharged in the pay grade of E-4 on 7 September 1987 due to the expiration of his term of service.

3.  He again enlisted in the MNARNG on 15 May 1998 and served until he was honorably discharged on 23 January 2001 to accept a commission in the MNARNG.

4.  On 24 January 2001, he was commissioned as a 2LT in the MNARNG and he completed the officer basic course on 20 September 2002.  He served until he was honorably discharged from the MNARNG on 2 November 2002 at his own request and was transferred to the USAR Control Group (Retired).  The applicant had 10 years, 5 months, and 20 days of service for pay.

5.  There is no indication in the available records to show why the applicant was transferred to the Retired Reserve; however, on 4 August 2006 the orders transferring him to the Retired Reserve were amended to reflect that he was instead transferred to the USAR Control Group (Annual Training) and his retirement points were corrected accordingly by giving him 15 membership points for each of the affected years.

6.  On 3 January 2007, the applicant was again appointed as a 2LT in the MNARNG and was detailed as a Medical Service Corps officer.  On 4 January 2007, he was promoted to the rank of 1LT in the Medical Service Corps.

7.  In the processing of this case a staff advisory opinion was obtained from the NGB which recommends approval of the applicant's request.  Officials at the NGB opine, in effect, that had the applicant not been erroneously transferred to the Retired Reserve (as he was ineligible to transfer to that control group), he would have been promoted to the rank of 1LT in the USAR on 24 January 2003.  Accordingly, NGB officials recommend that his DOR for promotion to 1LT be changed to 24 January 2003 with entitlement to any back pay and allowances and that his records be placed before a Special Selection Board (SSB) for promotion consideration to the rank of captain (CPT).  The advisory opinion was provided to the applicant for comment and/or rebuttal and he concurred with the opinion as written.

8.  Army Regulation 135-155 (Army National Guard and U.S. Army Reserve Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) provides policy for selecting and promoting commissioned officers of both the Army National Guard and the USAR.  It provides, in pertinent part, that an officer in the grade of 2LT will be considered for promotion without review by a selection board.  The officer's record will be screened to determine eligibility for promotion to the next higher grade far enough in advance to permit promotion on the date promotion service is completed.  A minimum of 2 years of time in grade as a 2LT is required for promotion to the rank of 1LT.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his DOR as a 1LT should be adjusted has been noted and appears to have merit.  The applicant was erroneously transferred to the USAR Control Group (Retired) at the time he was discharged from the MNARNG.  Accordingly, he was not promoted as a Reserve Component (USAR) officer on the anniversary of his second year of time in grade as a 2LT.

2.  Likewise, he did not accumulate any retirement points during the period he was in the USAR Control Group (Retired).  However, his records have since been corrected to reflect his membership points in the USAR after his orders were amended to reflect that he was transferred to the USAR Control Group (Annual Training).  Therefore, no action is required to adjust his retirement points.

3.  Inasmuch as the applicant would have been considered for promotion had he been properly transferred to the USAR Control Group (Annual Training), it would be in the interest of justice to correct his records to show that he was promoted to the rank of 1LT on 24 January 2003 with entitlement to any back pay and allowances that flow from that promotion and that his records be placed before the appropriate SSBs for promotion consideration to the rank of CPT.

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 showing that he was promoted to the rank of 1LT in the USAR effective 24 January 2003 with entitlement to all back pay and allowances that flow from that promotion and by placing his records before the appropriate SSBs for promotion consideration to the rank of CPT.



      ____________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)                                         AR20080011801



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ABCMR Record of Proceedings (cont)                                         AR20080011801



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