IN THE CASE OF:	

		BOARD DATE:	  8 October 2009

		DOCKET NUMBER:  AR20080014770 


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 service record be corrected and that he be given credit for having served for the period 4 April 2006 through 8 July 2007.

2.  The applicant states, in effect, that he decided to return to service with the Oregon Army National Guard (ORARNG).  He began the process of assembling the paperwork that would be required in order to make the transition back to military service and he completed this process on 3 April 2006.  Upon completion of the required paperwork, he flew at his own expense to Oregon in order to sit before a Federal Recognition Board.  The board took place on 5 April 2006.  Upon completion of his interview, he was selected for reappointment and was sworn back into the ORARNG.

3.  The applicant continues that on 30 May 2006 he received orders to report to the Mobilization Station at Camp Shelby, MS, for inprocessing.  On 19 July he received TCS (Temporary Change of Station) orders and departed for Bagram Airfield, Afghanistan.  He served approximately 11 months in theater as an embedded tactical trainer training soldiers of the Afghanistan National Army in support of U.S. Special Forces Operations in the Uruzgan and Helmand Provinces of Southern Afghanistan.

4.  In support of his request, the applicant submitted all appointment orders, orders to active duty in support of Operation Enduring Freedom (OEF), his DD Form 214 (Certificate of Release or Discharge from Active Duty), and all awards he received in theater.
CONSIDERATION OF EVIDENCE:

1.  The evidence of record shows the applicant was serving in the Texas Army National Guard (TXARNG) when, on 10 August 2000, he was notified he had been considered for promotion to the rank/grade of major (MAJ)/O-4; but unfortunately, he was not among those selected for promotion.  On 17 August 2000, he was honorably discharged from the TXARNG in accordance with National Guard Regulation 635-100 (Termination of Appointment and Withdrawal of Federal Recognition), paragraph 5a(3), due to his resignation and he was reassigned to the U.S. Army Reserve (USAR) Control Group (Reinforcement).  The applicant was again considered for promotion to the rank of MAJ and on 26 July 2001 he was notified he had not been selected for promotion.  As a result of his second non-selection, he was required to be discharged in accordance with applicable laws and regulation unless he was eligible for and requested transfer to the Retired Reserve.  The applicant was released from the USAR Control Group (Annual Training) and he was assigned to the USAR Control Group (Reinforcement) on 5 March 2002.

2.  On 24 October 2002, the USAR Personnel Command, St. Louis, MO, published Orders D-10-242746 honorably discharging the applicant from the USAR under the provisions of Army Regulation 135-175 (Separation of Officers) with an effective date of 31 October 2002.

3.  The evidence of record shows that orders withdrawing the applicant's Federal recognition effective 17 August 2000 when he was separated from the TXARNG and transferred to the USAR were not published until 16 August 2006 when Departments of the Army and Air Force, National Guard Bureau (NGB), Special Orders Number 209 AR were published.

4.  The evidence shows that on 4 April 2006, a Federal Recognition Examining Board was held by the ORARNG to determine the applicant's qualifications for Federal recognition as an officer in the rank/grade of captain (CPT)/O-3 in the Armor branch for the duty position of a liaison officer.

5.  The NGB Form 89 (Proceedings of a Federal Recognition Examining Board), dated 4 April 2006, indicates the board found the applicant to be physically, morally, generally, and professionally qualified for the appointment and he was granted Federal recognition.

6.  On 4 April 2006, the applicant executed an NGB Form 337 (Oaths of Office) as a CPT in the ORARNG and he was granted temporary Federal recognition.

7.  On 5 April 2006, an NGB Form 62-E (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 National Guard of the United States) was prepared and submitted by the applicant.  This application was processed through channels and on or after 17 May 2006 it was addressed in a fifth endorsement to the Chief, NGB, Washington, DC, by the State of Oregon Adjutant General.

8.  On 15 May 2006, the ORARNG, Salem, OR, published Orders 135-021 appointing the applicant in the ORARNG in the rank of CPT.  He was assigned to Headquarters and Headquarters Company, 41st Brigade Combat Team (Rear), ORARNG, for duty as a liaison officer.  This assignment was effective 4 April 2006.

9.  On 25 May 2006, the same headquarters published Orders 145-114 ordering the applicant to active duty as a member of his Reserve Component unit in support of OEF for a period not to exceed 450 days with an effective date of 30 May 2006.  The applicant was to report to his mobilization station at Camp Shelby no later than 30 May 2006.

10.  On 25 May 2006, the same headquarters published Orders 145-024 releasing the applicant from his unit and transferring him to Commander Choice, Headquarters and Headquarters Company, 41st Brigade Combat Team (FWD1O).  The effective date of his release and transfer was 25 May 2006.

11.  NGB Special Orders Number 209 AR were published on 16 August 2006.  These orders show the applicant was extended Federal recognition in the rank of CPT in the Armor branch with an effective date of 4 April 2006 based on his transfer from the USAR.  The applicant's Federal recognition as an Armor CPT was withdrawn in paragraph 7 due to his transfer to the USAR with an effective date of 17 August 2000 [already indicated in paragraph 2 above].

12.  On 8 December 2006, the ORARNG published Orders 342-007 releasing the applicant from his unit, Headquarters and Headquarters Company, 41st Brigade Combat Team (Rear), and transferring him to Commander Choice, Headquarters and Headquarters Company, 41st Brigade Combat Team (FWD1O).  The effective date of his release and transfer was 30 May 2006.

13.  The applicant submitted a copy of his DA Form 67-9 (Officer Evaluation Report) as verification he deployed to Afghanistan in support of OEF.  This report shows that while in Afghanistan, the applicant served as an infantry company mentor and advisor to an Afghan National Army Infantry Company.

14.  On 15 June 2007, the 1st Mobilization Brigade, Fort Carson, CO, published Orders 166-134 releasing the applicant from active duty, not by reason of physical disability, and assigning him to the ORARNG with an effective date of 8 July 2007.  These orders show the applicant was mobilized for OEF and the release from active duty was for demobilization of forces from a contingency operation.

15.  On 8 July 2007, the applicant was honorably released from active duty in the rank/grade of CPT/O-3 in accordance with the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 2-25a, at the completion of required active service.  Item 12c (Net Active Service This Period) of his DD Form 214 shows he served 1 year, 1 month, and 9 days of net active service this period.  Item 12f (Foreign Service) shows the applicant served 10 months and 23 days of foreign service during the period covered by his DD Form 214.  Item 18 (Remarks) shows the applicant served in Afghanistan from 21 July 2006 through 13 June 2007.

16.  On 23 July 2007, the ORARNG published Orders 204-369 amending Orders 145-114 to change the applicant's period of active duty from "30 May 2006 to 22 August 2007" to "30 May 2006 to 8 July 2007."

17.  On 23 July 2007, the ORARNG published Orders 204-377 ordering the applicant to active duty for special work (ADSW) as the Contingency Operations for Active Duty Operational Support (COADOS) Program Manager for the period 28 July 2007 through 30 September 2007.  On 19 September 2007, the ORARNG published Orders 262-152 ordering the applicant to ADSW as the COADOS Program Manager for the period 1 October 2007 through 30 September 2008.

18.  On 24 October 2007, it became known to NGB officials that the applicant, who was at the time serving in an ADSW status, had no current status in the military.  He had been discharged in 2002 and had no Federal recognition appointment.  He was, in effect, a civilian.

19.  On 30 October 2007, an NGB memorandum, subject:  Request to Reappoint Previously Separated Officer, requested that a waiver be granted to facilitate the applicant's reappointment notwithstanding that he had twice been passed over for promotion to the rank of MAJ.  On 23 January 2008, the Assistant Secretary of the Army for Manpower and Reserve Affairs determined that based on the applicant's exceptional professional qualifications, which were uniquely suited to the appointment sought, his appointment was in the best interest of the Army and granted an exceptional appointment eligibility waiver under the provisions of National Guard Regulation 600-100 (Commissioned Officers - Federal Recognition and Related Personnel Actions), paragraph 2-10d, and Army Regulation 135-100 (Appointment of Commissioned Officers of the Army), paragraph 1-8b, and pursuant to Headquarters, Department of the Army General Orders Number 3.

20.  In the memorandum from the Assistant Secretary of the Army for Manpower and Reserve Affairs, the applicant was advised that because he never received a Reserve of the Army appointment after his discharge from the Army on 31 October 2002, he was statutorily ineligible to be ordered to active duty and he had held no Federal military status since that time.  He was advised he could apply to this Board and request that it grant relief by correcting his military record to reflect Federal military service since April 2006.

21.  The applicant provided a copy of a DD Form 214 showing he was honorably released from ADSW in the rank/grade of CPT/O-3 in accordance with the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 2-25a, at the completion of required active service.  Item 12a of this DD Form 214 shows the applicant entered active duty on 28 July 2007 and item 12b shows he was separated on 30 November 2007.  Item 12c of his DD Form 214 shows he served on active duty for 4 months and 3 days this period.

22.  In the processing of this case, an advisory opinion was requested of the Chief, Personnel Division, NGB, Arlington, Virginia.

23.  In the advisory opinion, dated 20 October 2008, the Chief, Personnel Division, reiterated the applicant's request and statements and recommended approval of his request to adjust his initial appointment date to 4 April 2006.  The recommendation was based on a series of errors in not submitting the initial State Federal recognition board packet to the NGB for the publication of Federal recognition orders; for deploying the officer in support of OEF; and in not obtaining the Secretary of the Army's waiver approval for the appointment of an officer who had been twice not selected for promotion to MAJ until January 2008.

24.  On 21 October 2008, the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  The applicant concurred with the advisory opinion on 27 October 2008.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was twice considered for and was not selected for promotion to the rank of MAJ.  On 26 July 2001, he was notified he had not been selected for promotion the second time.  As a result of his second non-selection, he was required to be discharged in accordance with applicable laws and regulation unless he was eligible for and requested transfer to the Retired Reserve.  On 24 October 2002, orders were published discharging the applicant from the USAR with an effective date of 31 October 2002.

2.  On 4 April 2006, a Federal Recognition Examining Board was held by the ORARNG and determined the applicant qualified for Federal recognition.  The applicant executed the Oaths of Office as a CPT in the ORARNG and he was granted temporary Federal recognition.

3.  On 15 May 2006, the ORARNG published orders and appointed the applicant in the ORARNG in the rank of CPT.  The appointment was effective 4 April 2006.

4.  On 25 May 2006, the ORARNG ordered the applicant to active duty.  The applicant complied with his orders and deployed to Afghanistan in support of OEF.

5.  On 16 August 2006, NGB special orders extended Federal recognition to the applicant in the rank of CPT in the Armor branch with an effective date of 4 April 2006.  At the time the NGB extended Federal recognition to the applicant, it was unaware the applicant had been discharged on 31 October 2002 and that he had no affiliation with the USAR.

6.  On 8 July 2007, the applicant was released from active duty.  His DD Form 214 shows he served 1 year, 1 month, and 9 days of net active service this period.  During this period he served in Afghanistan from 21 July 2006 through 13 June 2007, a period of 10 months and 23 days.

7.  On 23 July 2007, the ORARNG ordered the applicant to ADSW for the period 28 July 2007 through 30 September 2007.  On 19 September 2007, the ORARNG published orders ordering the applicant to ADSW for the period 1 October 2007 through 30 September 2008.

8.  On 24 October 2007, NGB officials learned that the applicant, who was at the time serving in an ADSW status, had no current status in the military.

9.  On 30 October 2007, NGB requested that a waiver be granted to facilitate the applicant's reappointment, notwithstanding that he had twice been passed over for promotion to the rank of MAJ.

10.  On 23 January 2008, the Assistant Secretary of the Army for Manpower and Reserve Affairs determined that based on the applicant's exceptional professional qualifications, which were uniquely suited to the appointment sought, his appointment was in the best interest of the Army and granted an exceptional appointment eligibility waiver.

11.  The Chief, Personnel Division, NGB, recommended approval of the applicant's request to adjust his Federal recognition date to 4 April 2006.

12.  Based on the approval of the exceptional appointment eligibility waiver granted to the applicant by the Assistant Secretary of the Army for Manpower and Reserve Affairs and the recommendation for support expressed by the NGB, the applicant's request for credit of his active duty service for the period 4 April 2006 through 8 July 2007 and correction of all his service records should be approved.

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 the state Army National Guard records and the Department of the Army records of the individual concerned be corrected by:

	a.  showing the Secretary of the Army for Manpower and Reserve Affairs granted him an exceptional appointment eligibility waiver for reappointment in April 2006, making his 4 April 2006 appointment in the ORARNG a valid appointment and making NGB Special Orders Number 209 AR published on 16 August 2006 granting him Federal recognition effective 4 April 2006 valid orders; and



	b.  as a result of the above correction, all of his active duty performed on or after 4 April 2006 is valid and the Defense Finance and Accounting Service should audit his records to ensure he has been appropriately paid for all service performed on and after 4 April 2006.



      ____________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)                                         AR20080014770



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ABCMR Record of Proceedings (cont)                                         AR20080014770



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