IN THE CASE OF:	  

		BOARD DATE:	  28 June 2012

		DOCKET NUMBER:   AR20110017181 


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).


3.  For clarity, the following abbreviations and/or acronyms are used:

* AAG:  Assistant Adjutant General
* ABCMR:  Army Board for Correction of Military Records
* AFS:  Active Federal Service
* AGR:  Active Guard Reserve
* AR:  Army Regulation
* ARNGUS:  Army National Guard of the United States
* AZARNG:  Arizona Army National Guard
* BG:  Brigadier General
* CNGB:  Chief, National Guard Bureau
* DA:  Department of the Army
* COL:  Colonel
* FRB:  Federal Recognition Board
* GOMO:  General Officer Management Office
* IG:  Inspector General
* NGB:  National Guard Bureau
* NGR:  National Guard Regulation
* OTJAG:  Office of the Judge Advocate General
* RC:  Reserve Component
* SA:  Secretary of the Army
* SECDEF:  Secretary of Defense
* USC:  U.S. Code
* TAG:  The Adjutant General


4.  References:

* Title 10, USC, section 10145:  Ready Reserve – Placement In
* Title 10, USC, section 12213:  Officers – Army Reserve:  Transfer from ARNGUS
* Title 10, USC, section 12215:  Commissioned Officers – Reserve Grade of Adjutant Generals and AAG's
* Title 10, USC, section 14003:  Reserve Active Status List (RASL) – Position of Officers on the List
* Title 10, USC, section 14507:  Removal from the RASL for Years of Service, Reserve Lieutenant Colonels and COL's of the Army, Air Force, and Marine Corps and Reserve Commanders and Captains of the Navy
* Title 10, USC, section 14509:  Separation at Age 62:  Reserve Officers in Grades Below BG or Rear Admiral (Lower Half)
* Title 32, USC, section 307:  Federal Recognition of Officers:  Examination; Certificate of Eligibility
* NGR 600-100 (Commissioned Officers – Federal Recognition and Related Personnel Actions)
* AR 140-10 (Army Reserve – Assignments, Attachments, Details, and Transfers)

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests:

* approval and Senate confirmation of his nomination packet for promotion to BG
* a Senate confirmation date of promotion of 8 December 2010, the same date his 09A board was officially confirmed

2.  The applicant states:

	a.  The Arizona TAG selected him as the new Director/AAG for the AZARNG at the beginning of March 2009.  In order to meet the next GO promotion board, he had to complete his packet by June 2009 when the NGB FRB 09A met.  NGB GOMO sent his office the handbook to ensure the necessary information was submitted to the board.  The guidance he received was that he had to be in a retired status before the board met in June.  He cut his AGR tour short and gave up a significant amount of leave in order to meet this suspense.  He retired on 31 March 2009 with a little over 1 year of time in grade as a COL and over 20 years of AFS.

	b.  He contacted NGB GOMO regarding the status of his packet and he was told his packet was fine and it had made it through the NGB GO FRB processing through DA channels.  There were some packets with IG issues which held everyone up in the 09A batch.  He called a few times and he was assured his packet had no problems.

	c.  He received Senate confirmation in December 2010.  However, his name was not on the list.  NGB GOMO was also surprised his name was not on the list. 
DA GOMO had inadvertently pulled his packet thinking he had retired after the board process.  They acknowledged the mistake and stated they would do all they could to rectify the situation.  Although there was a mistake, he was told his packet would be put back in and that by March 2011, it would reach the Senate for nomination.  TAG inquired about his status and he was told the packet was held up at DA JAG.  Finally, in April 2011, he was contacted by TAG who told him JAG would not let his packet continue.

	d.  According to OTJAG, the rules had changed and he was no longer eligible for ARNG GO nomination because he was in a retired status.  In order to be boarded, he had to be brought back into active military status and reapply for the next board in November 2011.  He was the first to fall under the change and he believes he should not be penalized since he has already waited for 2 years and it is unfair to have him reapply to the next GO board.  This would take another 14 to 18 months.  TAG has also waited over 2 years and can't go another year without a GO.

	e.  The only recourse is to request through the ABCMR that DA allow his packet to continue to go forward for Senate nomination.  Once confirmed by the Senate, his orders should be backdated to December 2010 to reflect when 
09A-boarded officers were confirmed.

	f.  He could not even start this process without an official written notice from the SA declining his packet.  This took another 3 months just to receive the disapproval.  He received notice from the SA on 15 July 2011.

	g.  He was selected by the NGB FRB along with other 09A nominees.  He also received a letter of indispensability from the SA back in September 2009 approving him to be reinstated in the ARNG as an active military member to hold the GO billet for his Assistant TAG position.  He has been working as the Director of the AZARNG since 1 April 2009.  The last GO to be nominated in his State, including the current TAG, had to be in a retired status in order to be eligible for nomination.  This disapproval, by no fault of his own, resulted in his discontinuation of full time employment in the ARNG.


3.  The applicant provides:

* SA RC GO disapproval memorandum
* TAG letter of support
* email exchange with the NGB IG
* letter from the Governor, State of Arizona
* DA GOMO letter, subject:  Request to Transfer from the Retired Reserve for Indispensability

CONSIDERATION OF EVIDENCE:

1.  Having prior RC service, the applicant was appointed as an aviation second lieutenant in the AZARNG and executed the oaths of office on 22 January 1988.  He served in a variety of stateside or overseas assignments, including multiple entries on active duty.

2.  He entered active duty in an AGR status on 1 August 1996.  He was promoted to lieutenant colonel on 25 September 2002 and to COL on 9 January 2008.

3.  On 6 June 2008, the AZARNG issued him a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).

4.  On 26 March 2009, NGB GOMO submitted the applicant's name along with other nominees for consideration by the June 2009 ARNGUS GO FRB.

5.  He was honorably retired on 31 March 2009 and placed on the Retired List in the rank of COL on 1 April 2009.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 20 years, 4 months, and 21 days of creditable active service.

6.  On 2 April 2009 in a letter to the SA, the Governor of Arizona supported the applicant's recall from the Retired Reserve with follow-on appointment as a GO and assignment as the AAG-Army, AZARNG.  The Governor stated that prior to his appointment as a GO, she had appointed him to the position of Director, AZARNG.  This position is a full-time civilian position that corresponds to the military AAG-Army position.  She added that upon his recall and subsequent promotion, she will appoint him to the AAG-Army position immediately.  Due to his years of full-time service, the key duty assignment he had held, and his intimate knowledge of the AZARNG, the applicant is indispensible to her, TAG, and the Soldiers of the AZARNG.

7.  On 9 June 2009, the CNGB forwarded the request for a finding of indispensability to DA GOMO.

8.  On 11 June 2009, the applicant was considered by the June 2009 Arizona ARNGUS GO FRB and recommended for Federal recognition in the grade of BG.

9.  On 4 September 2009 in a memorandum to the CNGB, the Chief, DA GOMO, stated the SA determined the services of the applicant to be indispensible to the Ready Reserve.  Under the provisions of AR 140-10, paragraph 6-4a, the applicant may serve in an active status in the Ready Reserve as the AAG, AZARNG.  The SA also approved an exception to AR 140-10, paragraphs          6-6a(1) and (2), to allow the applicant to serve in the Ready Reserve until completion of his assignment as the AAG or until his mandatory removal date of 31 August 2026, whichever is earlier.

10.  A subsequent GOMO review at the direction of the Office of the Under Secretary of Defense for Personnel and Readiness (OSD P&R) of all nominees to verify that no retirees' names were on the list of nominees recommended for Federal recognition identified the applicant as a retiree.

11.  On 20 August 2010, the SA notified OSD P&R that the applicant's name would be removed from the list of officers recommended for Federal recognition pursuant to Title 10, USC, section 14317(a).

12.  On 30 November 2010, NGB GOMO notified DA GOMO that the applicant should not have been removed from the June 2009 ARNGUS GO FRB.  NGB asserted they had previous legal guidance that said officers were eligible to meet the board in a retired status.

13.  On 13 December 2010, DA GOMO forwarded the applicant's separate nomination for Federal recognition request to OTJAG for legal review.  NGB GOMO asserted that the applicant was serving in an active status pursuant to the SA's finding of indispensability.

14.  On 24 March 2011 in response to a request for clarification from OTJAG, NGB GOMO advised that, contrary to their previous assertion, the applicant was not in an active status and was still serving as the Director, AZARNG, in a civilian capacity.

15.  On 15 April 2011, OTJAG advised that the applicant was not eligible for consideration by the June 2009 ARNGUS GO FRB because he was not in an active status as required by NGR 600-100, paragraph 11-4d, and because NGR 600-100, paragraph 11-4k, made RC officers receiving retired pay ineligible for consideration.  In a lengthy legal brief, OTJAG stated:

	a.  It is OTJAG's opinion that the applicant was not eligible for consideration for Federal recognition by the June 2009 Army ARNGUS GO FRB, that the June 2009 GO FRB results are void regarding the applicant, and the subject action is therefore legally objectionable.

	b.  OTJAG sees no legal objection, however, if the applicant is appointed by the Arizona Governor to be the AAG and transferred from the Retired Reserve and placed in an active status on the RASL in the grade of COL based on the SA's previous determination of indispensability.  When appointed as the AAG, the applicant can be promoted by the State to the grade of BG.  However, this would only confer a State status and would not provide him with Federal recognition as a BG.  Once he is returned to an active status, he may then be considered by an ARNGUS GO FRB without having to first obtain an exception to NGR 600-100, paragraph 11-4d.  He would, however, still require an exception to NGR 600-100, paragraph 11-4e, because he has not been in an active status since 1 April 2009.  If he is not appointed as the AAG and returned to an active status with Federal recognition in the grade of COL, he will require exceptions to NGR 600-100, paragraphs 11-4d, e, and k, before he may be considered by another ARNGUS GO FRB.

	c.  Background:

		(1)  On 31 March 2009, the applicant, then a member of the ARNGUS and the AGR Program, retired from active status and was transferred to the Retired Reserve on 1 April 2009 after completing more than 20 years of AFS for purposes of qualifying for Regular retirement under the provisions of Title 10, USC, section 3911.  As such, he is entitled to receive retired pay.

		(2)  In a letter to the SA, dated 2 April 2009, the Governor of Arizona requested that the SA make a finding of indispensability for the applicant under the provisions of Title 10, USC, section 10145, so that he could serve as the AZARNG AAG.  The Governor further stated she had appointed him to the position of Director, AZARNG, a civilian position corresponding to the military AAG-Army position, and that "upon his recall [sic] from the Retired Reserve and subsequent promotion to [BG], I will appoint [the applicant] to the AAG-Army position immediately."

		(3)  On 11 June 2009, he was considered by the June 2009 ARNGUS GO FRB and recommended for Federal recognition in the rank of BG.

		(4)  On 4 September 2009, the SA approved a finding of indispensability for the applicant.  The SA approved the June 2009 ARNGUS GO FRB results and forwarded nominations, to include the applicant's, to the SECDEF on 23 November 2009 and again on 5 January 2010.

		(5)  Prior to the applicant's nomination being forwarded to the White House, a post-board screening was conducted in August 2010 which resulted in identifying the applicant as being retired but serving as the Arizona AAG without a finding of indispensability.  Accordingly, on 20 August 2010, the SA requested the applicant's name be removed from the nomination scroll.  On 30 November 2010, the Office of the Chief of Staff, Army, was advised by NGB GOMO that the applicant should not have been removed from the June 2009 ARNGUS GO FRB nomination scroll because he had, in fact, a finding of indispensability from the SA and was serving in an active status.  Accordingly, "it is appropriate to forward [the applicant's] nomination to avoid further delay of the processing of his nomination for Federal recognition."

		(6)  In response to OTJAG's request for additional information regarding the applicant's status, contrary to the information provided in the draft forwarding memorandum, the NGB advised that the applicant is "serving as the Director, AZARNG as a civilian since 2 April 2009" and "has not been appointed as the AAG and won't be until he completes the GO FRB process and then can be appointed and assessed into the AZARNG and subsequently Federally recognized to BG."  Accordingly, it appears the applicant has not yet been transferred from the Retired Reserve in accordance with the SA's finding of indispensability and remains in a retired status as a civilian employee of the State of Arizona.

	d.  Findings of Indispensability:

		(1)  As for the findings of indispensability, OTJAG previously addressed the issue of a finding of indispensability under the provisions of Title 10, USC, section 10145(d), regarding the applicant and advised, inter alia, that there was no legal objection to the action.  As noted above, the SA determined the applicant's services to be indispensable on 4 September 2009, approximately 3 months after the June 2009 ARNGUS GO FRB convened.  The SA also approved an exception to AR 140-10, paragraphs 6-6a(1) and (2), to allow the applicant to serve until the completion of his assignment as the AAG or until he reaches his mandatory removal date, whichever occurs first.

		(2)  OTJAG also advised that "if transferred to the Ready Reserve under Title 10, USC, section 10145d, the applicant will he placed on the RASL in the grade of COL (Title 10, USC, section 14003).  As noted above, it is unclear at this time whether the applicant has, in fact, been so transferred."

	e.  Federal Recognition:

		(1)  When the applicant was transferred to the Retired Reserve in the grade of COL, his Federal recognition was withdrawn and he became an officer of the Army Reserve under the provisions of Title 10, USC, section 12213(h).  However, Title 32, USC, section 307(d), states, "Federal recognition shall be extended to each officer of the Army Reserve who has qualified for appointment as an officer of the ARNG in his Reserve grade."  Additionally, in accordance with Title 32, USC, section 307(a)(3), the applicant's Federal recognition in the grade of COL may be accomplished without GO FRB action based on his status as an officer in the Army Reserve.  Accordingly, if he is transferred from the Retired Reserve to the Ready Reserve and placed on the RASL, Title 32 USC, section 307(d), authorizes his Federal recognition in the grade of COL until such time as he is properly recommended for Federal recognition in the grade of BG.

		(2)  However, while there is no legal objection to him being Federally recognized in the grade of COL while he serves as the AAG, we have previously opined that a COL who is a member of the Retired Reserve with a direct appointment in a State ARNG in the grade of BG could not be transferred from the Retired Reserve to the Ready Reserve in the grade of BG until the officer was appropriately considered by a GO FRB and appointed in the Reserve of the Army in the grade of BG.

		(3)  Under the provisions of Title 10, USC, section 12215, officers appointed as AAG's are appointed in the Reserve of the Army in their Federally-recognized grade – in this case, COL for the applicant.  While such officers are not subject to the limitations imposed by Title 10, USC, section 12204(b), such officers must still satisfy the requirements of NGR 600-100 and AR 135-156 for Federal recognition and Reserve of the Army appointment in the grade of BG and those regulatory and statutory provisions pertaining to Federal recognition and Reserve appointments that do not specifically exempt AAG's.  Accordingly, the applicant must either satisfy the regulatory requirements or obtain appropriate exceptions.  Under the provisions of Title 10, USC, section 10145, and AR 140-10, the applicant may serve as the Arizona AAG in an active status in the Ready Reserve in his current grade until such time as he is otherwise considered and recommended for Federal recognition in the rank of BG and confirmed by the Senate.

		(4)  As noted above, OTJAG opines that the applicant was not eligible for consideration for Federal recognition in the rank of BG when the June 2009 ARNGUS GO FRB convened because he was not in an active status as required by NGR 600-100, paragraph 11-4d.  Further, NGR 600-100, paragraph 11-4k, provides that "RC officers receiving retired pay under the provisions of Title 10, USC, are ineligible" for consideration by a GO FRB, although an exception to regulatory provisions could have been obtained prior to the convening of the June 2009 GO FRB, such exceptions were not obtained and, thus, his status remained as Retired Reserve and he was not in an active status when the board convened.

		(5)  Accordingly, if he is now serving in an active status, he may properly be considered for Federal recognition in the grade of BG by a subsequent board. 
However, he will also require an exception to NGR 600-100, paragraphs 11-4k (noted above) and e, which requires that an officer "have served continuously for 5 years in an active status immediately preceding consideration by a [GO FRB)" and that "a commissioned officer who has been in inactive status may not be considered for promotion until at least 1 year after the date he or she is returned to active status."

	f.  Mandatory Removal Date (MRD):

		(1)  Transfer to the Ready Reserve under the provisions of Title 10, USC, section 10145, does not render him exempt from statutory and/or regulatory MRD's.  Accordingly, he is subject to the MRD's applicable to his grade.

		(2)  Under the provisions of Title 10, USC, section 14507(b), the applicant is exempt from the statutory MRD's for maximum years of commissioned service or maximum time-in-grade (TlG) for a COL as long as he remains assigned as the Arizona AAG or becomes TAG.  However, under the provisions of Title 10, USC, section 14509, his MRD for age will be 31 August 2026, the last day of the month in which he reaches 62 years of age.

		(3)  Should he be properly Federally recognized in the grade of BG, he will likewise be exempt from the years of commissioned service and TlG MRD's for a BG in accordance with Title 10, USC, section 14508(h); his MRD for age as a BG will be 62 years (section 14510).

		(4)  Notwithstanding the statutory MRD's cited above, OTJAG notes that under the provisions of NGR 635-100, the applicant's MRD for age is 60 years and his MRD for years of commissioned service or TIG is 30 total years of service or 5 years of TIG.  However, on 16 March 2007, the Acting SA issued a directive-type memorandum (DTM) which provides that RC BG's may serve to age 62, but that the statutory and regulatory MRD for years of commissioned service or TIG remained unchanged.  OTJAG previously opined that this DTM acts as a standing Secretarial exception to Army policy and regulations, to include NGR 635-100.

	g.  OTJAG noted that a copy of the applicant's request to be transferred from the Retired Reserve to the Ready Reserve made under Title 10, USC, section 10145(d), and AR 140-10 is now included in the file in accordance with OTJAG's previous guidance.  Additionally, pursuant to the SA's exception to 
AR 140-10, paragraph 6-6a(1), granted on 4 September 2009, the applicant may serve in the Ready Reserve for more than 1 year from the date of his transfer from the Retired Reserve until he completes his assignment as AAG or until he reaches his MRD for age, whichever is earlier.

16.  On 14 July 2011 in a memorandum to the CNGB, the SA stated that after a careful review of the applicant's nomination, the applicant was ineligible for consideration by the June 2009 ARNGUS GO FRB.  As such, "I disapproved, without prejudice, the results of the June 2009 ARNGUS GO FRB as they pertain to [the applicant]."  As an exception, the applicant's record shall be adjusted to reflect he has not met a board for the purposes of NGR 600-100, paragraph 
11-13c.  The applicant would be eligible for consideration by a future board provided he meets the eligibility criteria in NGR 600-100 or receives the appropriate exceptions to policy prior to the convening of the ARNGUS GO FRB.

17.  An advisory opinion was obtained from the Chief, GOMO, on 27 January 2012, in the processing of this case.  He stated:

	a.  The eligibility criteria for consideration by a GO FRB are established in NGR 600-100, chapter 11.  Under the provisions NGR 600-100, paragraphs 
11-8b and c, the CNGB is responsible for screening the records for accuracy and completeness to ensure that officers meet the requirements for consideration for Federal recognition and forwarding them to the Army.

	b.  To be considered for Federal recognition in a GO grade, NGR 600-100, paragraph 11-4d, requires an officer to "be in an active status at the time an FRB is convened."  The applicant's nomination was submitted for consideration by the June 2009 ARNGUS GO FRB which convened on 11 June 2009.  The applicant had been assigned to the Retired Reserve since 1 April 2009 and remained in the Retired Reserve at the time of the June 2009 ARNGUS GO FRB.

	c.  NGR 600-100, paragraph 11-4k, directs that "RC officers receiving retired pay under the provisions of Title 10, USC, are ineligible [for consideration for Federal recognition]."  The applicant was receiving retired pay since his transfer to the Retired Reserve on 1 April 2009.

	d.  NGR 600-100, paragraph 11-4e, requires an officer to "have served continuously for 5 years in an active status immediately preceding consideration by an FRB."  The applicant was removed from the RASL upon his assignment to the Retired Reserve on 1 April 2009.  The June 2009 ARNGUS GO FRB Memorandum of Instruction, annex A, specifies that the 5-year service requirement is not applicable to State AG or AAG.

	e.  Upon review of the applicant's information, the eligibility criteria of 
NGR 600-100, and the legal opinion, he was not eligible for consideration by the June 2009 ARNGUS GO FRB.  Based on the above and in the absence of documentation from NGB to serve as evidence to the contrary, the SA could not approve the board results as they pertain to the applicant.

18.  The applicant submitted a rebuttal on 15 March 2012 wherein he disagreed with the advisory opinion and stated:

	a.  NGR 600-100, dated 15 April 1994, used at the time of his board process, states in paragraph k that an RC officer receiving retired pay under the provisions of Title 10, USC, may be placed in an active status by the SA and Federally recognized to serve as a State AG or AAG.

	b.  He had approval to be reinstated to an active status.  All they had to do was inform his State to place him in an active status to promote him 1 day prior to being Federally recognized as a GO.  This is also stated in the ARNG GO Federal Recognition Handbook, dated January 2009.

	c.  He was told by TAG and by NGB that he had to be in a retired status in order to be eligible for consideration.  This had to take place prior to the June 2009 board.  He did what he was told and even cut his retirement short in order to meet this eligibility requirement.  He had another 2 years of Title 32 AGR service to finish his brigade command.

	d.  If one looks back at the previous AAG's in the State of Arizona, both BG S____ and BG M____ were in a retired status when they were Federally recognized and promoted to this position.  They were specifically told they could not be in a Title 32 AGR status when being considered by the Federal board.  How can he be punished for following the guidance and direction given to him at the time of the board by his AG and NGB?  He asks that the Board carefully read his original statement leading up to his notification of ineligibility.


19.  The applicant submits a statement of support from TAG who states:

	a.  With approval from the Governor of Arizona, the applicant was selected to become the Director/AAG for the AZARNG in March 2009.  A promotion packet for him was completed in accordance with guidance from NGB and submitted for the June 2009 NGB FRB (09A).  Per NGB guidance and in accordance with past practices, he had to retire to meet the GO board in a retired status because he was an AGR officer with more than 20 years of AFS.  As a former AGR officer himself, TAG stated that this was the same process he and other officers in the past had gone through when promoted to GO.

	b.  For a variety of reasons beyond his control, the 09A promotion list was delayed on numerous occasions.  During the over 18 months of delays, at no time did he [TAG] receive an indication of a problem with the promotion.  He was simply told the list was tracking and processing through channels.  When the list received Senate confirmation and was published in December 2010, he discovered the applicant's name was missing from the list.  When NGB GOMO was consulted, they did not initially know the reason for the omission.  However, upon some research, he was informed that DA GOMO had inadvertently pulled the applicant's name off the list.  He was also told that DA GOMO acknowledged the error and would correct it and expedite the promotion packet.

	c.  In April 2011, he was finally told the promotion packet had been held at DA OTJAG because the rules of eligibility had changed.  The applicant could not be nominated for promotion in a retired status.  Their recommendation was that the applicant had to be recalled and once recalled he could be submitted for promotion again at the next scheduled promotion board in the Fall of 2011.  Given that it has been over 2 years and it would be another year and a half before he could be promoted at best, he [TAG] made a decision to go in a different direction in the best interest of the organization.

	d.  He concludes that what happened to the applicant is an injustice.  At the time he was submitted for promotion, he met the criteria and only because DA GOMO made a mistake and accidently took his name off the list, did the applicant not receive the promotion he deserves.

20.  On 20 June 2012, NGB advised the Board analyst that AZARNG does have an Assistant Adjutant General position, but it is not vacant at this time.

21.  References:

	a.  Title 10, USC, section 10145, states:  (1) each person required under law to serve in an RC shall, upon becoming a member, be placed in the Ready Reserve of his Armed Force for his prescribed term of service unless he is transferred to the Standby Reserve under section 10146(a) of this title; (2) the units and members of the ARNGUS are in the Ready Reserve of the Army; (3) all Reserve officers of the Army assigned to units organized to serve as units and designated as units in the Ready Reserve are in the Ready Reserve; and (4) under such regulations as the Secretary concerned may prescribe, any qualified member of an RC or any qualified retired enlisted member of a Regular Component may, upon his request, be placed in the Ready Reserve.  However, a member of the Retired Reserve entitled to retired pay or a retired enlisted member of a Regular Component may not be placed in the Ready Reserve unless the Secretary concerned makes a special finding that the member's services in the Ready Reserve are indispensable.  The authority of the Secretary concerned under the preceding sentence may not be delegated to a civilian officer or employee of the military department concerned below the level of Assistant Secretary, or to a member of the Armed Forces below the level of the lieutenant general or vice admiral in an Armed Force with responsibility for military personnel policy in that Armed Force.

	b.  Title 10, USC, section 14003, states:  (1) officers shall be carried on the RASL of the Armed Force of which they are members in the order of seniority of the grade in which they are serving in an active status; officers serving in the same grade shall be carried in the order of their rank in that grade; and (2) an officer whose position on the RASL results from service under a temporary appointment or in a grade held by reason of assignment to a position has, when that appointment or assignment ends, the grade and position on that list that the officer would have held if the officer had not received that appointment or assignment.

	c.  Title 10, USC, section 12213(b), states that unless discharged from his appointment as a Reserve officer of the Army, an officer of the ARNGUS whose Federal recognition as a member of the ARNG is withdrawn becomes a member of the Army Reserve.  An officer who so becomes a member of the Army Reserve ceases to be a member of the ARNGUS.

	d.  Title 10, USC, section 12215, states:  (1) TAG or AAG of the ARNG of a State may, upon being extended Federal recognition, be appointed as a Reserve officer of the Army as of the date on which he is so recognized; and (2) TAG or AAG of the Air National Guard of a State may be appointed in the Reserve commissioned grade in which Federal recognition in the Air National Guard is extended to him.

	e.  Title 10, USC, section 14507(b) (COL's), states that unless continued on the RASL under section 14701 or 14702 of this title or retained as provided in section 12646 or 12686 of this title, each Reserve officer of the Army, Air Force, or Marine Corps who holds the grade of COL, and each Reserve officer of the Navy who holds the grade of captain, and who is not on a list of officers recommended for promotion to the next higher grade shall (if not earlier removed from the RASL) be removed from that list under section 14514 of this title on the first day of the month after the month in which the officer completes 30 years of commissioned service.  This subsection does not apply to State TAG's or AAG's.

	f.  Title 10, USC, section 14509, states that each Reserve officer of the Army, Navy, Air Force, or Marine Corps in a grade below BG or rear admiral (lower half) who has not been recommended for promotion to the grade of BG or rear admiral (lower half) and is not a member of the Retired Reserve shall, on the last day of the month in which that officer becomes 62 years of age, be separated in accordance with section 14515 of this title.

	g.  Title 32, USC, section 307(a), states that to be eligible for Federal recognition as an officer of the National Guard, a person must:  (1) receive an appointment with a view to filling a vacancy in a Federally-recognized unit or organization of the National Guard; (2) have the qualifications prescribed by the Secretary concerned for the grade, branch, position, and type of unit or organization involved; and (3) except as provided in subsections (d) and (e) of this section, pass an examination for physical, moral, and professional fitness to be prescribed by the President and subscribe to the oath of office prescribed by section 312 of this title.

	h.  Title 32, USC, section 307(d), states that subject to subsections (a)(1) and (2) and to such physical examination as may be prescribed, Federal recognition shall be extended to each officer of the Army Reserve who has qualified for appointment as an officer of the ARNG in his Reserve grade.  Similarly, Federal recognition shall be extended to each officer of the Air Force Reserve who has qualified for appointment as an officer of the Air National Guard.  Federal recognition extended under this subsection is effective from the date of appointment in the ARNG or the Air National Guard, as the case may be.

	i.  NGR 600-100 provides procedures for processing all applications for Federal recognition.

	j.  Paragraph 11-4 (Prerequisites for Consideration for Federal Recognition in GO Grades) states that in order to be considered for Federal recognition in a GO grade, the candidates must meet several requirements, as stated in paragraphs 11-4a through 11-4m.

		(1)  Paragraph 11-4a states one of the requirements is holding an appointment in the ARNG of a State, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, or the District of Columbia in the grade for which being considered.

		(2)  Paragraph 11-4d states that in order to be considered for Federal recognition in a GO grade, the candidate must be in an active status at the time an FRB is convened.  This requirement is not applicable to State AG's or retired Regular Army officers appointed to a GO grade as State AAG's.

		(3)  Paragraph 11-4e states that in order to be considered for Federal recognition in a GO grade, the candidate must have served continuously for 5 years in an active status immediately preceding consideration by an FRB.  When recommended by the board, this requirement may be waived by the SA if an officer has been in an inactive status for no more than 2 years during the 
5-year period.  A commissioned officer who has been in an inactive status may not be considered for promotion until at least 1 year after the date on which he/she is returned to an active status in accordance with Title 10, USC, section 3364(e).  This requirement is not applicable to State AG's or retired Regular Army commissioned officers appointed to a GO grade as State AAG's.

		(4)  Paragraph 11-4k states RC officers receiving retired pay under Title 10, USC, are ineligible.  However, an RC officer receiving retired pay under Title 10, USC, may be placed in an active status by the SA and Federally recognized to serve as a State AG or AAG.

	k.  AR 140-10 covers policy and procedures for assigning, attaching, removing, and transferring U.S. Army Reserve Soldiers.  Chapter 6 covers transfer to and from the Retired Reserve.

		(1)  Paragraph 6-4 (Criteria for Transfer from the Retired Reserve) states the criteria for transfer from the Retired Reserve to the Ready Reserve is based on the Soldier's status as noted in subparagraphs (a) through (c):  (a) transfer is not authorized for Soldiers receiving retired pay unless the SA makes a special finding that their services are indispensable; (b) a Soldier who is not receiving retired pay and is otherwise qualified and not prohibited under (c) below may be transferred to the Individual Ready Reserve or to an appropriate troop program unit or individual mobilization augmentee position vacancy; the transfer must be voluntary based on the Soldier's request; (c) all retired Reserve Soldiers who 

were removed from active status by board action or operation of law are ineligible for transfer to the Ready Reserve; and (d) retired Reserve Soldiers who were removed from active status by operation of law and whose transfer to the Ready Reserve would result in their immediate removal there from by operation of law, are ineligible to transfer to the Ready Reserve.

		(2)  Paragraph 6-6 (Soldiers Determined to be Indispensable) states in subparagraph (a) that Soldiers transferred to the Ready Reserve as indispensable will be reassigned to the Retired Reserve on the earlier of:  1 year, the date removed from the position for which the finding of indispensability was made, or the date removal from an active status is mandatory; and (b) transfer of indispensable Soldiers to other positions is not authorized unless a new finding for the other position is requested and approved.  Soldiers erroneously transferred to other positions will be removed when the error is discovered.  If an erroneous transfer resulted in promotion, that promotion is void.  Voided promotions will be evaluated to determine if service in each voided grade was in a de facto status.  Soldiers who occupied the higher grade in a de facto status may retain the pay and allowances for that service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant, a member of the ARNG, retired on 31 March 2009 and was transferred to the Retired Reserve on 1 April 2009 after completing more than 20 years of AFS for purposes of qualifying for Regular retirement.  He began receiving retired pay.

2.  In April 2009, the Governor of Arizona requested that the SA make a finding of indispensability for the applicant so he could serve as the AZARNG AAG.  

3.  He was considered by the June 2009 ARNGUS GO FRB and recommended for Federal recognition in the grade of BG.  After having approved a finding of indispensability for the applicant, the SA approved the June 2009 ARNGUS GO FRB results and forwarded nominations, to include the applicant's, to the SECDEF on 23 November 2009 and again on 5 January 2010.

4.  Prior to the applicant's nomination being forwarded to the White House, a post-board screening was conducted in August 2010 which resulted in identifying the applicant as being retired.  Accordingly, the SA requested that the applicant's name be removed from the nomination scroll.  

5.  The SA stated that after a careful review of the applicant's nomination, the applicant was ineligible for consideration by the June 2009 ARNGUS GO FRB.  As such, the SA disapproved the results of the June 2009 ARNGUS GO FRB as 
they pertained to the applicant without prejudice.  However, as an exception, the SA authorized an adjustment to the applicant's record to reflect he had not met a board for the purposes of NGR 600-100, paragraph 11-13c.  The applicant would 
be eligible for consideration by a future board provided he met the eligibility criteria in NGR 600-100 or received the appropriate exceptions to policy prior to the convening of the ARNGUS GO FRB.

6.  The eligibility criteria for consideration by a GO FRB are established in NGR 600-100, chapter 11.  NGR 600-100, paragraphs 11-8b and c, state the CNGB is responsible for screening the records for accuracy and completeness to ensure officers meet the requirements for consideration for Federal recognition and forwarding them to the Army.

7.  In order to be considered for Federal recognition in a GO grade, NGR 
600-100, paragraph 11-4d, requires an officer to be in an active status at the time an FRB is convened.  The applicant's nomination was submitted for consideration by the June 2009 ARNGUS GO FRB which convened on 11 June 2009.  The applicant had been assigned to the Retired Reserve since 1 April 2009 and remained in the Retired Reserve at the time of the June 2009 ARNGUS GO FRB.

8.  Additionally, NGR 600-100, paragraph 11-4k, states that RC officers receiving retired pay under the provisions of Title 10, USC, are ineligible for consideration for Federal recognition.  The applicant was receiving retired pay since his transfer to the Retired Reserve on 1 April 2009.

9.  Although it is clear that the applicant acted in good faith based on the advice he received from NGB – and although it may have been a past practice within NGB to nominate a retired officer to the positions of TAG and/or AAG, the eligibility criteria of NGR 600-100 in the applicant's case was not met.  He was not eligible for consideration by the June 2009 ARNGUS GO FRB.

10.  Notwithstanding the above, it is acknowledged that the Governor of the State of Arizona wanted the applicant for the AAG position.  Information received on  20 June 2012 indicates that position has already been filled.  However, if the Governor still wants the applicant for that position, and takes the steps required to make her desire known within the next 6 months, it would be appropriate to correct the applicant’s records as shown below.  The applicant should be aware 

that the Senate confirmation and SECDEF scrolling actions required for full relief are not within the jurisdiction of this Board.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X___  ___X____  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all State Army National Guard and Department of the Army records of the individual concerned be corrected, contingent upon the Governor of Arizona making her desire for his appointment to the AZARNG AAG position known to NGB within    6 months from the date of the approval of this Board action, by:

   a. voiding his 31 March 2009 retirement and showing he remained on active duty to the present date (with appropriate offsets for any retired pay/civilian pay he may have received);

   b. showing the SA approved a finding of indispensability for him, approved the June 2009 ARNGUS GO FRB results, and forwarded his nomination to the Senate for confirmation; 

   c. if/when the Senate confirms his appointment, sending his name to the  SECDEF to sign the scroll; and

   d. if/when the SECDEF signs the scroll, promoting him to BG accordingly and taking the steps required to assign him to the AZARNG AAG position.

2.  The Board further determined that the evidence presented was insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to approving and showing 

Senate confirmation of his nomination packet for promotion to BG with a Senate confirmation date/date of promotion of 8 December 2010.




      _______ _   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.

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