IN THE CASE OF:	  

		BOARD DATE:	    29 September 2011

		DOCKET NUMBER:  AR20110011051 

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 Date of Rank (DOR) be changed.

2.  The applicant states his branch will not honor his rank earned in the National Guard.   

3.  The applicant provides:

* DA Form 67-9 (Officer Evaluation Report)
* DA Form 71 (Oath of Office - Military Personnel) - Regular Army
* DA Form 71 (Oath of Office - Military Personnel) - Reserve 
* NGB Form 0122E (Federal Recognition)
* NGB Form 0126E (Name Change)
* NGB Form 22 (Departments of the Army and Air Force National Guard Bureau Report of Separation and Record of Service)
* NGB Form 337 (Oaths of Office)
* Promotion Orders

CONSIDERATION OF EVIDENCE:

1.  The applicant entered the Army National Guard through the Early Commissioning Program (ECP) on 17 August 2005, and graduated from the New Mexico Military Institute on 12 May 2007, with an Associates of Arts degree.

2.  The applicant's DA Form 71 shows he took an initial oath of office as a military intelligence officer on 11 May 2007.

3.  The applicant's NGB Form 337 shows he took an additional oath of office in the Washington Army National Guard (WAARNG) on 31 August 2007.  This oath of office granted him temporary recognition in the grade of second lieutenant/
2LT.

4.  The applicant's NGB Form 22 shows he was discharged from the WAARNG on 8 September 2009.  He was discharged as a specialty 35D Military Intelligence officer.  The NGB Form 22 shows he was a first lieutenant/1LT with the DOR of 11 February 2009.  

5.  Orders Number 238-005, dated 26 August 2009, show the applicant was promoted to the grade of 2LT but would not be paid or authorized wear of the rank insignia until he received Federal Recognition.

6.  The applicant's NGB Form 0122E shows he was granted Federal Recognition in the grade of 2LT on 16 October 2009.

7.  The National Guard Bureau did not publish an order recognizing the applicant as a 1LT until 16 October 2009, which was after he had been discharged from the National Guard.

8.  On 19 January 2010 the National Guard Bureau rescinded the applicant's promotion to 1LT effective 8 September 2009.

9.  The applicant's DA Form 71 shows he executed an oath of office for the Regular Army.  He was appointed as a Medical Service Corps officer in the grade of 2LT on 10 September 2009.  

10.  Orders 019-1, dated 19 January 2010, states, in additional instructions, "all reserve of the Army and Army of the United States appointments are terminated" effective 8 September 2009.

11.  The advisory opinion from the United States Recruiting Command states the applicant's ECP contract required him to actively participate in unit training assemblies while enrolled as a full-time student at an institution offering Army ROTC until he completed his baccalaureate degree.  Upon satisfactory completion of all academic and military requirements of the Army ROTC program, he would be appointed in the grade of 2LT.  Failure to complete his degree in a three year period would result in recoupment of the scholarship and/or call to active duty as an enlisted Soldier for breach of contract.

12.  The advisory opinion also states the applicant was promoted to 1LT in the WAARNG on 11 May 2009 as a Military Intelligence officer - not as a Medical Service Corps officer.  On the promotion order in the additional instructions it states the following, "Individual will not be paid as a 1LT, nor authorized wear of that insignia until Federal Recognition is confirmed.  Soldier is an ECP officer.  The above is with the concurrence of the state officer appointment/promotion board."  

13.  The Advisory opinion further states the National Guard Bureau did not publish an order recognizing the applicant's promotion to 1LT until 16 October 2009, at which time he had already been discharged from the National Guard.  On 19 January 2010, the National Guard Bureau rescinded the above promotion orders effective 8 September 2009, which was the day the applicant was discharged from the Army National Guard.  The applicant then took an active duty oath of office on 10 September 2009 as a Medical Service Corps officer.

14.  The Army Review Board Agency (ARBA) sent the applicant a letter which provided him a copy of an advisory opinion regarding his case.  The applicant was given 30 days to respond.  ARBA did not receive a reply from the applicant.

15.  The applicant provided an Officer Evaluation Report that lists his DOR for 1LT as 20 November 2010.

16.  NGR 600-100 (Commissioned Officer-Federal Recognition and Related Personnel Actions) provides procedures for processing all applications for Federal Recognition.  Paragraph 2-1 states that 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 Army National Guard of the United States if they have not already accepted such appointment.  

17.  NGR 600-100, 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.  

18.  NGR 600-100, paragraph 2-13 states that temporary Federal Recognition may be extended to an officer who has been appointed in the ARNG of a State and found to be qualified by a Federal Recognition Board pending final determination of eligibility and appointment as a Reserve commissioned officer of the Army.  If not sooner withdrawn or replaced by the granting of permanent Federal Recognition, temporary Federal Recognition will automatically terminate six months after the effective date of State appointment.  However, should the initial period of temporary Federal Recognition expire due to administrative processing delays, through no fault of the member, a subsequent Federal Recognition Board should be convened to consider the request again and grant another new period of temporary Federal Recognition if warranted.

19.  NGR 600-100, paragraph 10-15b states that temporary Federal Recognition may be granted by a Federal Recognition Board to those eligible when the board finds that the member has successfully passed the examination prescribed herein, has subscribed to the oath of office, and has been appointed by a State order for assignment to a position vacancy in a federally recognized unit of the ARNG.  The Federal Recognition Board will forward the NGB Form 89 and allied documents to The Adjutant General.  When the member is favorably recommended, The Adjutant General will endorse the packet to the National Guard Bureau.  If the member meets the qualifications and requirements for Federal Recognition, the Chief, National Guard Bureau extends permanent Federal Recognition to the member in the grade and branch in which the member is qualified.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to have his DOR changed was carefully considered and determined to lack merit.

2.  The applicant was appointed in the WAARNG as an intelligence officer, not as a medical service corps officer.

3.  The applicant's promotion to 1LT in the WAARNG was not Federally Recognized until after he was discharged.  Additionally, evidence shows the promotion to 1LT was rescinded by the WAARNG.  Therefore it would be inappropriate to recognize the promotion to 1LT or change the applicant's DOR.

4.  Records show the applicant's total constructive credit is 0 years, 0 months, and 0 days with no date of rank adjustment made at the time of his initial appointment onto active duty.

5.  The applicant's constructive credit was properly computed and his DOR is correct as shown on his Officer Record Brief.  

6.  Based on the foregoing, there is insufficient evidence to grant the relief request.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  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.




      _______ _   _______   ___
               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)                                         AR20110011051



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ABCMR Record of Proceedings (cont)                                         AR20110011051



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