IN THE CASE OF:	

		BOARD DATE:	  28 January 2010

		DOCKET NUMBER:  AR20090007442 


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, adjustment to her Federal recognition date and appointment date into the Idaho Army National Guard (IDARNG) from 26 February 2009 to 22 October 2008, with entitlement to all back pay and allowances.

2.  The applicant states, in effect, that through no fault of her own and due to a State Headquarters administrative error she was erroneously appointed into the IDARNG on 22 October 2008.  She states that she was not aware of the administrative error and performed duty in good faith.  She states, in effect, that her original Oath of Office and state appointment orders were voided and once the administrative error was corrected her appointment date was changed from 22 October 2008 to 26 February 2009 causing an adjustment to her date of rank, adjustment to her service creditable for retirement, and recoupment of the pay received for the period of 27 October 2008 to 25 February 2009.

3.  The applicant provides State of Idaho Orders 443-023; State of Idaho Orders 416-029; State of Idaho Orders 416-030; NGID-Z memorandum, dated 14 April 2009; a printout of e-mails; and State of Idaho Orders 298-004 in support of this application. 

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show she previously served in an enlisted status in the Regular Army and IDARNG prior to her appointment as a Reserve commissioned officer in the rank of second lieutenant in the Medical Service Corps (MS) effective 7 February 1992.  She entered active duty on 30 December 1992.

2.  The applicant was promoted to major effective 1 July 2003, with the same date of rank.  She was discharged from active duty on 26 September 2008.

3.  On 24 October 2008, the applicant was issued State of Idaho Orders 443-023, showing her appointment in the IDARNG, as a major, effective 22 October 2008.  She signed her oath of office as a major on 22 October 2008.

4.  On 24 October 2008, the applicant was issued State of Idaho Orders 298-004 ordering her to active duty for special work for the period 27 October 2008 through 30 September 2009.

5.  On 24 April 2009, the applicant was issued State of Idaho Orders 416-029, which revoked her State of Idaho Orders 443-023 appointing her in the IDARNG.

6.  On 24 April 2009, the applicant was issued State of Idaho Orders 416-030, showing her appointment in the IDARNG, as a major, effective 26 February 2009.  She signed her oath of office as a major on 26 February 2009.

7.  In an email to the National Guard Bureau (NGB), dated 18 August 2009, an IDARNG official explained that the state was unaware the applicant's break in service required her to be processed through a new U.S. Army Recruiting Command (USAREC) board in order to be reappointed as an MS officer.  Once aware of the requirement, the state voided her Oath of Office and state appointment orders and processed her through the USAREC as prescribed by regulation.

8.  On 4 September 2009, the applicant was issued NGB Special Orders Number 218 AR showing she was extended Federal Recognition effective 26 February 2009 with a date of rank as major of 1 January 2004.

9.  NGB Special Orders Number 255 AR, dated 21 October 2009, adjusted her date of rank as major from 1 January 2004 to 1 December 2003.

10.  In an advisory opinion, dated 10 November 2009, the Chief, Personnel Division, NGB, recommended approval of the applicant's request for adjustment of her date of rank to 1 December 2003 and adjustment to her creditable service.  Furthermore, the NGB recommended she receive all back pay and allowances as a result of this recommended correction.

11.  The NGB indicated the recommendation was reached after consulting with the Army Medical Department (AMEDD) Officer Accessions Section, per e-mail dated 26 August 2009 which stated in part: "in accordance with National Guard Regulation 600-100 (Commissioned Officers - Federal Recognition and Related Personnel Actions), there was a break in service, she was no longer a commissioned officer and the date of rank must be backdated.  She was discharged from the Active Component and there is no evidence that she was transferred to the USAR control group and retained her commission.  Without a commission there was no other option than for her to go thru the USAREC boarding process." 

12.  The advisory opinion states that the IDARNG was informed in the e-mail dated 5 November 2008 from a representative of the AMEDD Officer Accessions Section that due to the break in service the applicant had to be boarded again for re-entry.  Unless a new accession packet was submitted for processing she was not qualified for service.

13.  The NGB continues by indicating a memorandum from the IDARNG dated 14 April 2009 requested that the applicant be granted a waiver to retain all pay and allowances received during the period 22 October 2008 through 26 February 2009.  The NGID-Z memorandum, subject: Request for Waiver of Recoupment of Pay and Allowances for [the applicant], dated 14 April 2009, states in paragraph 2 that it was through administrative error, not deceit or defraud on the part of the applicant, that resulted in her receiving pay during a period of non-affiliation.  The memorandum indicates that the applicant had been on full-time duty since her erroneous accession into the IDARNG on 22 October 2008.  After receiving guidance from the NGB that her appointment to the IDARNG was not valid, all required actions were completed to validate the appointment and she was subsequently reappointed.

14.  The NGB advisory opinion states that National Guard Regulation 600-100, chapter 2, section 2-12 (b-19), prescribes that "applicants for appointment in the health professions and related specialties.  Except for AMEDD officers of the USAR seeking Federal recognition in the ARNG, each applicant for Federal recognition with assignment to the Medical Corps (MC), Dental Corps (DC), Veterinary Corps (VC), Army Nurse Corps (ANC), Army Medical Specialist Corps (SP), and Medical Service Corps (MS) will submit evidence of professional education, appropriate current license, and evidence of qualifying experience as prescribed in Army Regulation 135-101 (Appointment of Reserve Commissioned Officer for Assignment to Army Medical Department Branches)." 

15.  On 17 November 2009, the advisory opinion was forwarded to the applicant for acknowledgement or feedback.  She did not submit a response.
DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was discharged from active duty on 26 September 2008.  She was initially issued orders appointing her to the IDARNG on 22 October 2008 and ordered to active duty for special work (ADSW) for the period 27 October 2008 through 30 September 2009.

2.  Upon learning that she had been erroneously appointed into the IDARNG because she had not gone through the USAREC boarding process, the state voided her 22 October 2008 appointment, processed her through USAREC, and reappointed her effective 26 February 2009 with an adjusted date of rank of 1 December 2003.  However, beginning on 27 October 2008, she performed ADSW in good faith believing she was a commissioned officer in the IDARNG.

3.  The NGB advisory opinion recommended approval of the applicant's request for an adjustment of her date of rank and creditable service.  The NGB also recommended that she receive all back pay and allowances as a result of this correction.  In order to insure this is accomplished the applicant's records must be corrected to show she was appointed in the IDARNG and extended Federal Recognition as a major effective 22 October 2008, with all appropriate adjustments of pay and allowances.  Therefore, Orders 416-030, dated 24 April 2009; Orders 416-029, dated 24 April 2009; the Oath of Office, dated 26 February 2009; Special Orders 218 AR, dated 4 September 2009; and Special Orders 255-AR, dated 21 October 2009; should be declared void and of no force or effect.

4.  Based on the applicant's 26 September 2008 discharge date from the Regular Army and the recommended change of the applicant's appointment date/Federal recognition date to 22 October 2008, her break in service will be 25 days.  As such, by adding the 25 days to her original date of rank to major [1 July 2003], her adjusted date of rank to major should be 26 July 2003.

5.  In view of the foregoing, the applicant’s IDARNG and Department of the Army records should be corrected as recommended below.









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

	a.  voiding the applicant's Orders 416-030, dated 24 April 2009; Orders
416-029, dated 24 April 2009; the Oath of Office, dated 26 February 2009; Special Orders 218 AR, dated 4 September 2009; and Special Orders 255-AR, dated 21 October 2009; and 

	b.  issuing orders showing the applicant was appointed in the Idaho Army National Guard, MS, and extended Federal Recognition, as a major, effective 22 October 2008 with a date of rank of 26 July 2003, and appropriately adjusting her pay and allowances.




      _______ _   _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)                                         AR20090007442



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090007442



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1