IN THE CASE OF:	  

		BOARD DATE:	  9 June 2009

		DOCKET NUMBER:  AR20090000776 


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 record be corrected to show one additional year of constructive service credit as a first lieutenant (1LT) in the Chaplain Corps, correct his date of rank to captain (CPT), and correct his date of rank to major (MAJ).

2.  The applicant states, in effect, that his appointment as a 1LT in the California Army National Guard (CAARNG) should be adjusted to show 2 years of constructive service credit.  He states he received credit for 1 year, but that he should have received credit for a second year due to his 13 years of active professional experience.  He states that the error occurred due to an oversight at the time he was appointed in the Chaplain Corps. 

3.  The applicant provides copies of the following documents in support of his application:

	a.  U.S. Total Army Personnel Agency (Provisional), St. Louis, Missouri letter, dated 16 February 1989, subject:  Appointment as a Reserve Commissioned Officer of the Army;

	b.  DD Form 2088 (Ecclesiastical Endorsement), dated 6 April 1987;

	c.  National Guard Bureau (NGB) Form 89 (Proceedings of a Federal Recognition Examining Board), dated 3 February 1988;

	
   d.  NGB Special Orders Number 248 AR, dated 27 December 1988, extending the applicant Federal recognition in the ARNG for the purpose of appointment from the U.S. Army Reserve (USAR), effective 5 August 1988; 

	e.  State of California, Office of The Adjutant General, Sacramento, Orders 
66-24, dated 5 April 1988;

	f.  State of California, Office of The Adjutant General, Sacramento, letter, dated 26 April 1989, subject:  Appointment as a Reserve Commissioned Officer of the Army; and

	g.  State of California, Office of The Adjutant General, Sacramento, Orders 128-48, dated 14 June 1990. 

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.  On 6 April 1987, an authority of the General Association of Regular Baptist Churches endorsed a DD Form 2088 (Ecclesiastical Endorsement) that shows the applicant had completed 13 years of active professional experience after completing the educational requirements for the Chaplaincy.

3.  On 24 March 1988, a Federal Recognition Examining Board recommended that the applicant be appointed a first lieutenant in the CAARNG in the Chaplain Corps.  On the same date, the applicant executed an NGB Form 337 (Oaths of Office).

4.  NGB Special Orders Number 248-AR, announced the applicant's initial appointment and Federal recognition in the ARNG, effective 24 March 1988, in the rank of 1LT in the Chaplain Corps.

5.  State of California, Office of The Adjutant General, Orders 66-24, announced the appointment of the applicant to the rank of 1LT in the Chaplain Corps, effective 24 March 1988.  The applicant was assigned to Headquarters and Headquarters Detachment, 49th Military Police Battalion, Walnut Creek, California. 

6.  Headquarters, U.S. Total Army Personnel Agency (Provisional) memorandum, dated 16 February 1989, appointed the applicant as a Reserve commissioned officer of the U.S. Army in the rank of 1LT with an effective date of 14 March 1988.  This memorandum further stated that the applicant would serve in the ARNG of the United States with assignment to the Chaplain Corps.  

7.  On 10 May 1989, the applicant executed an oath of office as a Reserve commissioned officer and completed DA Form 71 (Oath of Office for Military Personnel) that shows he was a 1LT.

8.  State of California, Office of The Adjutant General, Orders 128-48, promoted the applicant to CPT in the CAARNG, effective 23 May 1990.

9.  NGB Special Orders Number 133-AR, dated 11 July 1990, announced the applicant's promotion and Federal recognition in the ARNG, effective 23 May 1990, to the rank of CPT in the Chaplain Corps.

10.  Records show that on 1 February 1995, the applicant was honorably discharged from the CAARNG by reason of resignation and issued an NGB Form 22 (Report of Separation and Record of Service) that shows he was a CPT with a date of rank of 23 May 1990 and that he was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement).

11.  State of California, Office of The Adjutant General, Orders 43-10, dated 23 February 1995, honorably separated the applicant from the CAARNG effective 1 February 1995 and transferred him to the USAR Control Group (Reinforcement). 

12.  NGB Special Orders Number 23 AR, dated 13 March 1995, announced that the applicant's Federal recognition in the ARNG was withdrawn and that he was transferred to the USAR as a CPT in the Chaplain Corps, effective 1 February 1995.

13.  NGB Special Orders Number 208 AR, dated 23 November  1998, amended Special Orders Number 23 AR to show the withdrawal of his Federal recognition and transfer to the USAR was effective 15 February 1995 vice 1 February 1995.

14.  Headquarters, USAR Personnel Center Orders R-06-003312, dated 16 June 1997, ordered the applicant to active duty in an Active Guard Reserve (AGR) status, effective 23 July 1997, in the rank of CPT.  These orders show that the applicant was ordered to active duty with a 3-year active duty commitment.   

15.  Headquarters, U.S. Army Human Resources Command (USAHRC), St. Louis, MO memorandum (AHRC-MSL-N), dated 29 July 1998, promoted the applicant to the rank of MAJ as a Reserve (AGR) commissioned officer, effective 29 July 1998, with a date of rank of 26 June 1997. 

16.  Headquarters, USAHRC, St. Louis, memorandum (AHRC-MSL-N), dated
3 March 2005, promoted the applicant to the rank of lieutenant colonel (LTC) as a Reserve (AGR) commissioned officer, with a date of rank and effective date of 8 February 2005.

17.  A Special Review Board convened and then adjourned on 24 October 2004 which directed that the applicant's grade and date of rank to lieutenant colonel be adjusted to 1 June 2004.  Subsequently, Headquarters, USAHRC, St. Louis, Orders B-10-506854, dated 24 October 2005, promoted the applicant in the USAR to the rank of LTC with an effective date and date of rank of 1 June 2004.

18.  Headquarters, USAHRC, St. Louis, Orders C-03-905396, dated 17 March 2009, attached the applicant to Fort Myer for separation processing with an established date of separation of 1 June 2009 from the AGR program.

19.  In the processing of this case, an advisory opinion, dated 23 February 2009, was provided by the NGB, Appeals and Analysis Branch of the Personnel Division.  The advisory official acknowledged that the applicant's date of rank to 1LT at the time he entered the CAARNG could have been 24 March 1987 based on his 13 years of professional experience as evidence by the endorsed DD Form 2088, dated 6 April 1987.  However, the applicant's date of rank as a commissioned officer in the Reserve of the Army and appointment to the Chaplain Corps was determined by the entry grade credit awarded on his initial appointment.

20.  This same advisory opinion states, in effect, that the alleged injustice occurred on 24 March 1988 and the applicant should have attempted to resolve it within a reasonable period of time or at least within 3 years after discovery of the alleged error or injustice as provided by statutory law.



21.  On 25 February 2009, the advisory opinion was provided to the applicant for information and to provide him the opportunity to submit comments.  On
27 February 2009, the applicant concurred with advisory rendered in his case.

22.  Army Regulation 135-100 (Appointment of Commissioned and Warrant Officers of the Army), in effect at the time, provides in pertinent part that constructive service credit is to provide grade and date of rank comparability for officers who begin their commissioned service after obtaining the additional education, training, or experience required for appointment or assignment as a commissioned officer in a professional field.  This relates to a contemporary who began commissioned service immediately after obtaining a baccalaureate degree.  A period of constructive service will be counted only once.  Appointment as a Chaplain should be in the rank of 1LT with few exceptions which accounts for 3 years of constructive service credit.  One year of creditable constructive service credit is authorized for 7 or more years of extensive practical experience in an established ministry and documented on DD Form 2088 submitted by the individual's Ecclesiastical Endorsing Agency. 

23.  Army Regulation 135-100 further provides that the date of rank of an officer commissioned in the Reserve of the Army and appointed to the Chaplain Branch will be determined by the entry grade credit awarded on the date of appointment.

24.  National Guard Regulation 600-100 (Commissioned Officers - Federal Recognition and Related Personnel Actions), paragraph 2-2, states that the effective date of Federal Recognition for original appointment is that date on which the commissioned officer executes the oath of office in the State.  Paragraph 2-3a states that temporary Federal Recognition upon initial appointment establishes the authorized grade to be used by all officers in their federally recognized status.

25.  National Guard Regulation 600-100 provides that the promotion of an officer in the ARNG is a function of the State.  This regulation further provides the effective date of promotion for an ARNG commissioned officer who is promoted in the State is the date the Chief, NGB extends Federal Recognition, unless otherwise provided by law.

DISCUSSION AND CONCLUSIONS:

1.  The applicant is correct that the regulation in effect at the time of his appointment as a 1LT allowed for an additional year of constructive service credit for 7 or more years of active professional experience.  The applicant is also correct that he had certification that shows he had 13 years of active professional experience when he was appointed.
2.  However, the applicant was offered and accepted appointment as a 1LT with no constructive service credit for his active professional experience even though the form documenting his 13 years of active professional experience was included in his appointment packet.  Upon his appointment, the applicant did receive 3 years of constructive service credit per regulatory guidelines.

3.  The reason for the applicant not being given an additional year of constructive service credit is not a matter of record.  However, it is reasonable to assume that if the applicant thought he should have been given additional constructive service credit for his active professional experience, he would have requested the additional year of constructive service credit at the time he was offered his initial appointment and that request would be a matter of record.

4.  The fact that there is no evidence that the applicant contested the lack of constructive service credit for his active professional experience until 20 years after he was appointed, and the fact that he accepted his appointment as a 1LT without constructive service credit for his active professional work experience is indicative that his active professional experience may not have been accepted as qualifying for constructive service credit at the time of his appointment.

5.  Notwithstanding the advisory opinion and in view of the foregoing, there is no basis for granting the applicant's request to award him 1-year constructive service credit for his 13 years of active professional experience.

6.  There is no basis for considering his request to correct his date of rank to CPT and MAJ since those requests were based on the premise that the Board would grant him an additional year of constructive service credit.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_____X___  ____X____  ___X_____  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.



      ___________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)                                         AR20090000776



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ABCMR Record of Proceedings (cont)                                         AR20090000776



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