IN THE CASE OF:	  

		BOARD DATE:  28 February 2012

		DOCKET NUMBER:  AR20110004561 


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  The applicant requests his discharge orders from the Oklahoma Army National Guard (OKARNG) be withdrawn or revoked and reinstatement into the Judge Advocate General Corps (JAGC) of the OKARNG.

2.  The applicant states:

* He was commissioned in 2007 and relied on the government conduct and actions which constituted a waiver or constructive waiver
* His discharge was unjust and not in the best interest of the military
* He should be allowed to continue his service despite having been twice non-selected for promotion during a prior period of service in the 1990s
* He is well-versed in the Arabic language - a language that is needed in the current conflict
* He deployed to Iraq as a JAGC officer and he was considered for promotion almost immediately after his return from deployment
* Despite his non-selection, he subsequently completed the required military education
* Given the totality of his situation, he believes the conduct of the Army constituted a waiver or the functional equivalent of a waiver of his previous non-selection

3.  The applicant provides:

* Certificate showing completion of the JA Officer Basic Course
* Statement to the Accession Board
* DA Form 330 (Language Proficiency Questionnaire)
* Letter of support
* DA Form 638 (Recommendation for Award)
* Officer Evaluation Report (OER) from 17 October 2007 through 16 September 2008
* Memorandum titled: Application for appointment in the JAGC, [Applicant]
* National Guard Bureau (NGB) Form 89 (Proceedings of a Federal Recognition Examining Board)
* NGB Special Orders Number 7 AR
* Orders to active duty
* Memorandum titled: Eligibility for Promotion as a Reserve Commissioned Officer Not on Active Duty
* Certificate of completion of the JA Officer Advanced Course (Phase I)
* DA Form 1059 (Service School Academic Evaluation Report)
* DA Form 2-1 (Personnel Qualification Record)
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the periods ending 30 September 2010 and 6 November 2008
* NGB Form 22 (Report of Separation and Record of Service)
* ARNG discharge orders

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service, the applicant was appointed as a Reserve first lieutenant in the OKARNG and executed an oath of office on 6 September 1990.  He completed the JA Officer Basic Course on 23 January 1992 and he was promoted to captain (CPT) on 7 May 1992.

2.  On 24 August 1994, he submitted a request for resignation.  Accordingly, he was honorably separated from the ARNG on 9 September 1994 and he was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining service obligation.

3.  On 24 September 1998, by memorandum, the U.S. Army Human Resources Command, St Louis, MO (HRC-STL) notified him that he had been considered for promotion to major (MAJ) by the 24 March 1998 Reserve Components Selection Board (RCSB) but he was not selected.

4.  On 14 January 2000, by memorandum, HRC-STL notified him that he had been considered for promotion to MAJ by the 2 March 1999 RCSB but he was not selected.  As a result of this second non-selection, he must be discharged from the USAR unless he was eligible to transfer to the Retired Reserve.

5.  He was honorably discharged from the USAR on 10 March 2000.
6.  On 15 July 2006, he submitted an application for Federal recognition as an ARNG officer.  With his application, he provided a statement of interests, wherein he highlighted his prior achievements and detailed his reasons for re-joining the ARNG.  He also submitted:

* DA Form 330, dated 26 May 2006, which shows he passed a foreign language test (Arabic)
* Statement of support, dated 13 May 2002, from an assistant professor at the University of Oklahoma

7.  While his application for Federal recognition was being processed, he enlisted in the OKARNG for 3 years on 12 December 2006.  He was assigned to the 321st Military Intelligence Battalion.  He was honorably discharged from the ARNG as an enlisted member on 16 October 2007.

8.  On 17 October 2007, a Federal Recognition Board (FRB) was held by the OKARNG to determine if the applicant was qualified to be awarded Federal recognition.  The proceedings indicated that the applicant was satisfactory in his physical qualifications, moral character, and general qualifications.

9.  He was appointed as a Reserve CPT in the OKARNG and executed an oath of office on 17 October 2007.

10.  He entered active duty on 9 November 2007 and subsequently served in Kuwait/Iraq from 24 January 2008 to 7 October 2008.  He was honorably released from active duty on 6 November 2008.

11.  He was awarded a Meritorious Service Medal for meritorious service from 15 February to 1 October 2008.  He also received an OER that covered the period 17 October 2007 through 16 September 2008 which shows his rater rated as performance as "Outstanding Performance - Must Promote" and his senior rater rated his promotion potential as "Best Qualified." 

12.  On 3 September 2009, by memorandum, the Joint Force Headquarters, OKARNG notified him that his records were considered by the March 2009 promotion selection board but he was not selected for promotion.  The memorandum also informed him that he would be eligible for consideration by the next board, in March 2010, and he should focus on civilian and/or military education.

13.  He provided a certificate, dated 6 October 2009, which shows he successfully completed Phase I of the JA Officer Advanced Course, consisting of 140 distant learning credit hours.  He also provided a DA Form 1059 which shows he successfully attended and completed Phase II of the JA Officer Advanced Course from 4 to 15 January 2010.

14.  On 13 October 2010, the NGB published Orders 286-2 ordering his honorable discharge from the ARNG and terminating all Reserve of the Army appointments, in accordance with paragraph 5a of National Guard Regulation 635-100 (Commissioned Officers - Federal Recognition and Related Personnel Actions).

15.  His NGB 22 for this period of service shows he completed 2 years, 11 months, and 15 days of net service this period.

16.  In the processing of this case, an advisory opinion was obtained on 23 January 2012.   An NGB official recommended disapproval and stated:

	a.  The applicant indicates he was erroneously discharged based on non-selection for promotion to MAJ.  He also states, he had not been made aware of being a two time non-select.  In a memorandum, dated 20 October 2011, the OKARNG contends the applicant had been non-selected while in the OKARNG previously.  He was transferred to the Individual Ready Reserve (IRR) and was non-selected for the second time.  He was accessed back into the OKARNG and was nonselected for promotion to MAJ for the third time due to not meeting the education requirements.  

	b.  As a result of the third non-selection, HRC-Fort Knox (St. Louis at the time), informed OKARNG of the applicant's prior non-selections for promotion to MAJ and that he should be immediately separated as he should have never been accessed.  The NGB Appeals and Analysis Section contacted HRC – Fort Knox and was given verbal confirmation that the applicant had been a two time non-select as of February 2000. 

	c.  National Guard Regulation 600-100, section 2-8, Persons ineligible for Federal recognition and waivers not authorized, (f)(4), states, "Persons dropped from the rolls, released from active duty, or separated from any component of the U.S. Armed Forces for any of the following reasons;…Reserve commissioned officers or warrant officers of the U.S. Armed Forces twice non-selected for promotion by a Reserve selection board convened by the Secretary concerned."

	d.  The State concurs with this recommendation.

17.  The applicant did not respond to the advisory opinion.


18.  National Guard Regulation 600-100 (Commissioned Officers - Federal Recognition and Related Personnel Actions) provides procedures for processing all applications for Federal recognition.  Paragraph 2-1 states commissioned officers of the ARNG are appointed by the several States under Article 1, section 8, of the U.S. Constitution.  These appointments may be Federally recognized by the Chief, NGB, 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 of the United States if they have not already accepted such appointment.

19.  Paragraph 2-8 provides for persons not eligible for Federal recognition (waiver not authorized).  It prohibits persons dropped from the rolls, released from active duty, or separated from any component of the U.S. Armed Forces as a reserve commissioned officer twice non-selected for promotion by a Reserve board convened by the Secretary concerned. 

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was previously twice non-selected for promotion to MAJ.  In each case, he was notified of his non-selection and as required by law and regulation, he was ultimately discharged from the USAR in March 2000.

2.  It appears that when he submitted his application for Federal recognition as an officer in the OKARNG in October 2007, officials were unaware of his non-selections for promotion.  Accordingly, he was erroneously accessed into the OKARNG in 2007.  

3.  Two years into his service, he was considered by a promotion board and non-selected a third time.  It was at that time officials discovered his erroneous accession.  Although he was ineligible for Federal recognition or a waiver by reason of having been twice non-selected, the NGB ordered his honorable discharge.

4.  In effect, the applicant received relief in that instead of discharging him for an unauthorized accession, he was allowed to receive the benefit of the service credit, active service, and pay associated with this service.  

5.  The applicant remains ineligible to reenter the ARNG as a commissioned officer because he continues to be a twice non-selected officer.  As such, there is no reason to revoke his discharge orders or reinstate him into the ARNG.
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)                                         AR20110004561





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ABCMR Record of Proceedings (cont)                                         AR20110004561



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