IN THE CASE OF:	  

		BOARD DATE:	        19 MAY 2009

		DOCKET NUMBER:  AR20090002410 


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 correction of his date of rank (DOR) as captain (CPT) from 1 December 2002 to 6 September 2005.

2.  The applicant states that upon his transfer from the Individual Ready Reserve (IRR) to the North Carolina Army National Guard (NCARNG), his DOR was not adjusted to account for his break in service.  He adds that according to Title 10, U.S. Code (USC), section 741d(3), an officer who is taken from inactive status and transferred to an active status may have his DOR adjusted.  He also adds that he is no longer serving in his original primary military occupational specialty (MOS) 21A (Engineer) and has recently taken command of a forward support company which placed him in a logistics position (MOS 90A).  He further adds that the NCARNG policy dictates that personnel must be qualified in the MOS for the position they occupy.  He concludes that he wishes to remain in command for a period of two years.  A promotion would necessitate removal from the position prior to attaining two years of command time. 

3.  The applicant provides a copy of Orders 240-002, issued by the Bamberg Transition Center, U.S. Army Europe, on 27 August 2004; a copy of Orders       C-10-523280, issued by the U.S. Army Human Resources Command (HRC), St. Louis, MO, on 14 October 2005; an extract of Title 10, USC, chapter 43, dated 3 January 2007; a copy of a memorandum for record, dated 1 November 2008, subject: Assumption of Command; and a copy of memorandum, dated 19 August 2008, pertaining to an upcoming Department of the Army (DA) Mandatory Promotion Selection Board, in support of his request.

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's records show he was appointed as a second lieutenant in the U.S. Army Reserve as an engineer and executed an oath of office on 21 May 1999.  He completed various military training courses, served in various command and staff positions, and was promoted through the ranks to CPT on 1 December 2002.  He was honorably released from active duty and transferred to the USAR Control Group (Reinforcement) on 15 September 2004.

3.  On 19 August 2005, the applicant submitted an application for Federal Recognition as an ARNG officer in the NCARNG. 

4.  On 6 September 2005, the applicant was appointed as a CPT in the NCARNG.  He executed an oath of office on the same date.  

5.  On 11 October 2005, Office of the Adjutant General, NCARNG, Raleigh, NC, published Orders 248-813 appointing the applicant as a CPT, Engineer Branch, in the NCARNG, effective 6 September 2005, with a DOR of 1 December 2002.  He was assigned to Company B, 3rd Battalion, 20th Special Forces Group (Augmentee), Roanoke Rapids, NC.

6.  On 14 October 2005, HRC-St. Louis, MO, published Orders C-10-523280 directing the applicant's release from the USAR Control Group (Reinforcement) effective 6 September 2005, for the purpose of accepting an appointment in the NCARNG. 

7.  On 18 November 2005, the National Guard Bureau, Arlington, VA, published Special Orders Number 327 AR, extending the applicant Federal Recognition for his transfer from the USAR and appointment in the ARNG effective 6 September 2005.
8.  On 22 January 2007, the applicant was ordered to active duty in support of Operation Noble Eagle.  He was honorably released from active duty to the control of his ARNG unit on 21 May 2008.

9.  On 1 November 2008, the applicant was reassigned to and assumed command of Company A, 505th Engineer Battalion, Gastonia, NC.   

10.  An advisory opinion was obtained on 23 March 2009 in the processing of this case.  The Chief of Personnel Actions, National Guard Bureau, Arlington, VA, recommended disapproval of the applicant's request to adjust his DOR to 6 September 2005.  His recommendation is based on the fact that the applicant was in the USAR/IRR, and had no break in service.  The Chief stated that in accordance with National Guard Regulation (NGR) 600-100 (Commissioned Officers-Federal Recognition and Related Personnel Actions), paragraph 8-6(a), a promotion criteria for commissioned officers is that an officer must be on the Reserve Active Status List (RASL) (Title 10, USC, section 14004).  The RASL is a single list of commissioned officers who are actively participating members of the ARNG and the USAR, including those in the IRR.  The RASL ranks officers within each grade and each category.  Furthermore, the Reserve Officer Personnel Management Act (ROPMA) states that the RASL is a single list of officers who are actively participating members of the ARNG and the USAR, including those officers in the IRR.

11.  The applicant was provided with a copy of this advisory opinion on 27 March 2009; however, he did not respond.

12.  Title 10, USC, section 741d, pertains to the rank of a commissioned officer of the armed forces.  Section 741d states the DOR of an officer of the Army, who holds a grade as the result of an original appointment shall be determined by the Secretary of the military department concerned at the time of such appointment. Except as otherwise provided by law, the DOR of an officer who holds a grade as the result of a promotion is the date of his appointment to that grade. Under regulations prescribed by the Secretary of Defense, which shall apply uniformly among the services, the DOR of a Reserve commissioned officer (other than a warrant officer) of the Army who is to be placed on the active-duty list and who has not been on continuous active duty since his original appointment as a Reserve commissioned officer in a grade above chief warrant officer, W–5, or who is transferred from an inactive status to an active status and placed on the active-duty list or the Reserve active-status list may, effective on the date on which he is placed on the active-duty list or Reserve active-status list, be changed by the Secretary concerned to a later date to reflect such officer’s qualifications and experience.  

13.  Army Regulation (Assignments, Attachments, Details, and Transfers) covers policy and procedures for assigning, attaching, removing, and transferring U.S. Army Reserve Soldiers.  It defines Ready Reserve Control Groups and the Selected Reserve.  Section II of this regulation defines "Active Status" as the status of an Army National Guard of the United States or USAR commissioned officer, other than a commissioned warrant officer, who is not in the inactive Army National Guard, in the Standby Reserve (Inactive List), or in the Retired Reserve.  

14.  Title 10, USC, Subtitle E (Reserve Components), Part III (Promotion and Retention of Officers on the Reserve Active Status List (RASL)), section 14004, states that except as otherwise provided by law, an officer must be on a Reserve active-status list to be eligible under chapter 1405 of this title for consideration for selection for promotion or for promotion.

15.  NGR 600-100 prescribes policies and procedures governing the appointment, assignment, temporary Federal Recognition, Federal Recognition, reassignment, transfer between States, branch transfers, utilization, attachments, and separation of commissioned officers of the ARNG.  It states, in pertinent part, that commissioned officers of the ARNG are appointed by the several States.  These appointments may be federally recognized by the Chief, National Guard Bureau, under such regulations as the Secretary of the Army may prescribe and under the provisions of this regulation.  Officers who are federally recognized in a particular grade and branch shall be tendered an appointment in the same grade as Reserve commissioned officers of the Army with assignment to the ARNG, as provided by law.   

16.  Paragraph 8-6 of NGR 600-100 states, in pertinent part, that the promotion of officers in the ARNG is a function of the State.  An officer must be on the RASL in accordance with Title 10, USC, section 14004.  The RASL is a single list of commissioned officers who are actively participating members of the ARNG and USAR, including those officers in the IRR.  The RASL ranks officers within each grade and competitive category.     

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DOR as CPT should be adjusted to 6 September 2005.

2.  The evidence of record shows that the applicant was promoted to CPT on 1 December 2002, while a member of the Regular Army.  He was honorably released from the Regular Army on 15 September 2004 and transferred to the USAR Control Group.  He was in an IRR status, which is defined by statute and regulation as an active status.
3.  The evidence of record further shows that the applicant was appointed as a CPT in the NCARNG on 6 September 2005.  Having held the rank of CPT since 1 December 2002, and having been a member of the Ready Reserve (IRR) from the date he was released from active duty to the date he was appointed in the NCARNG, the applicant's DOR as CPT is correctly reflected on his records as     1 December 2002.   

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.




      _______ _ 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)                                         AR20090002410



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ABCMR Record of Proceedings (cont)                                         AR20090002410



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