BOARD DATE:	  10 April 2012

		DOCKET NUMBER:  AR20110017818 


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 military records dated 13 February 2006 and later to show his grade as Captain (CPT)/O-3 instead of Staff Sergeant (SSG)/E-6. 

2.  He states his record is in error due to missing documents which were not available at the time of enlistment in 2006.  However, the document which shows he served in the grade of CPT/O-3, with a date of rank (DOR) of 1 February 2006, has been found.

3.  He provides a copy of his 1984 promotion orders.

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.  After having prior enlisted service in the Regular Army, U.S. Army Reserve (USAR), and the Army National Guard (ARNG), the applicant was commissioned a Second Lieutenant/O-2 in the USAR on 18 May 1980. 

3.  U.S. Army Military Personnel Center (now known as U.S. Army Human Resources Command) Order Number 14-42, dated 1 February 1984, shows he was promoted to the grade of CPT/O-3 with a DOR of 1 March 1984.

4.  His record shows he received an honorable discharge from the USAR in the grade of CPT/O-3 on 20 July 1991.

5.  After a 14-year break in service, he enlisted in the Texas ARNG (TXARNG) for a period of 5 years on 13 February 2006, in the grade of SSG/E-6.  Section VII (Addendums) of the Guard Annex (Enlistment/Reenlistment Agreement – ARNG – Service Requirements and Methods of Fulfillment) shows the DA Form 5435 (Statement of Understanding – The Selected Reserve Montgomery GI Bill) as the only addendum to his enlistment agreement.  

6.  Section VIII (Statement of Acknowledgement and Understanding) of the Guard Annex, contains the following statement which he acknowledged with his signature on 13 February 2006:

"I have read and understand the statements above and that these statements are intended to constitute ALL promises and guarantees whatsoever concerning my enlistment.  No other (verbal or otherwise) promise or representation not annexed to my enlistment contract is valid or will be honored.  I hereby state that I have NOT been promised anything other than what is written on this form and hereby waive any claim based upon any promise or representation not annexed to my contract.  I further state that I have provided my recruiter and guidance counselor all information concerning my qualifications and that no official in the National Guard of the United States or any other agency has advised me to conceal nor have I concealed information in connection with my enlistment."

7.  His record contains two DA Forms 4836 (Oath of Extension of Enlistment or Reenlistment).  These documents show that while in the grade of SSG/E-6, he extended his Expiration Term of Service (ETS) date on two occasions, resulting in a final ETS date of 30 September 2011. 



8.  His records are void of any documentation showing he was appointed, executed an oath of office, or received Federal recognition in the grade of CPT/O-3 on or after 13 February 2006.

9.  On 1 September 2011, he received an honorable discharge from the TXARNG and was reassigned to the USAR Control Group (Retired Reserve).  On 2 September 2011, he was placed on Retired List in the grade of CPT/O-3. 

10.  National Guard Regulation 600-100 (Commissioned Officer - Federal Recognition and Related Personnel Actions) provides procedures for processing all applications for Federal recognition.  Chapter 2 (Appointments), 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.

11.  National Guard Regulation 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. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant enlisted in the TXARNG in the grade of SSG/E-6 on 
13 February 2006.  His contract shows he understood and acknowledged that no other promises (verbal or written) were made to him outside of those shown in the Guard Annex and Selected Reserve Montgomery GI Bill Annex.

2.  His records are void of evidence and he has not provided any evidence to show he was appointed to the grade of CPT/O-3, executed an oath of office, or received Federal recognition in the ARNG on or after 13 February 2006.  

3.  In view of the foregoing, there appears to be no error or injustice with the grade of SSG/E-6 in which the applicant served while a member of TXARNG after February 2006.

4.  The evidence of record confirms he was placed on the Retired List on 
2 September 2011 in the grade of CPT/O-3.  
5.  As such, he is not entitled to the relief requested.

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)                                         AR20110017818





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ABCMR Record of Proceedings (cont)                                         AR20110017818



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