IN THE CASE OF:	  

		BOARD DATE:  31 January 2013

		DOCKET NUMBER:  AR20110023567 


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 reappointment as a captain (CPT)/O-3 in the Ohio Army National Guard (OHARNG) effective March 2009 with associated pay/benefits.

2.  The applicant states:  

	a.  he served in the Individual Ready Reserve (IRR) from 1993 to 1998 in the rank/grade of first lieutenant (1LT)/O-2.  In 1998, he was erroneously passed over a second time for captain (this has been corrected by the Army Board for Correction of Military Records (ABCMR)).  In March 2009, because of this erroneous second non-selection, he was not permitted to reenter the military as a commissioned officer.  Instead, he had to reenter in the enlisted rank/grade of sergeant (SGT)/E-5.

	b.  upon leaving the OHARNG on 26 July 1993, the OHARNG failed to withdraw his Federal recognition from the National Guard Bureau (NGB) (these orders were finally issued on 13 September 2011).  On 20 September 2011, the ABCMR corrected his military record to show he was not eligible to have been passed over for CPT twice.

	c.  in March 2009, he should have been permitted to reenter the service as a commissioned officer.  He requested resignation from the ARNG on 1 July 1993 but the State failed to withdraw his Federal recognition at that time.  He was
non-selected for promotion to CPT during this period due to this administrative error.
3.  The applicant provides:

* NGB Special Orders Number 219 AR, dated 13 September 2011
* ABCMR Record of Proceedings in Docket Number AR20110000832

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the OHARNG on 13 February 1985 and he served until he was commissioned as second lieutenant (2LT)/O-1 in the U.S. Army Reserve (USAR) on 25 May 1988.  He accepted appointment in the ARNG that date.  He was promoted to 1LT on 24 May 1991.

2.  On 26 July 1993, he was honorably separated from the OHARNG effective 
1 July 1993 by reason of resignation.  His discharge orders stated that upon termination of his Federal recognition, he would become a member of the USAR (IRR).

3.  On 1 March 1996, he was considered but not selected for promotion to CPT.  This non-selection constituted his first pass-over for promotion to CPT.

4.  On 12 November 1996, he enlisted in the Arizona Air National Guard (AZANG).

5.  On 7 May 1998, he was notified he was considered but not selected for promotion for CPT.  This non-selection constituted his second pass-over for promotion and, as a result, he was discharged.

6.  On 30 August 1999, he voluntarily resigned from the AZANG.

7.  On 6 March 2009, he enlisted in the OHARNG in the rank/grade of SGT/E-5.  He was ordered to active duty on 3 May 2010.

8.  On 9 December 2010, the NGB approved his request for an age waiver for reappointment in the OHARNG.  However, the NGB determined the following:

	a.  based on the service documents provided, it appeared he was erroneously non-selected for promotion in 1998.  As a result, he would remain ineligible for reappointment until his record was corrected, and

	b.  his Federal recognition was not withdrawn when he transferred to the USAR in 1993.  The NGB directed the State to submit a request for withdrawal of his Federal recognition.


9.  He was released from active duty on 10 September 2011.

10.  He was ordered to active duty on 11 September 2011 from the OHARNG in support of Operation Enduring Freedom (OEF).

11.  NGB Special Orders Number 219 AR, dated 13 September 2011, show his Federal Recognition was withdrawn effective 1 July 1993 by reason of transfer to the USAR. 

12.  On 20 October 2011, the ABCMR corrected his records by:

* Showing the orders withdrawing his Federal recognition effective 1 July 1993 were issued in a timely manner
* Showing that as a result of the above correction his second non-selection to CPT was void
* Expunging from his records all documents related to his second consideration and non-selection for promotion to CPT

13.  He served in Afghanistan from 27 October 2011 to 3 September 2012.  On 26 October 2012, he was released from active duty.

14.  During the processing of this case an advisory opinion was obtained from the Personnel Policy Division, NGB, recommending partial relief of the applicant's request for reappointment as CPT in the OHARNG.  The advisory official stated:

	a.  the applicant should be reappointed at his last commissioned rank, 1LT, since the issue surrounding a second time non-select was resolved by the ABCMR.

	b.  he was granted an Age-in Grade waiver by the NGB on 9 December 2010 allowing him to serve in that rank.  However, considering he reenlisted as an SGT in the OHARNG prior to the issue of his two-time non-select being fixed by the ABCMR and he successfully served his country as a SGT in a combat zone, his record/rank should not be changed for that time period.

	c.  he should be granted every opportunity to serve the OHARNG as a commissioned officer and considering the error occurred at no fault of the applicant, it is recommended his date of rank be adjusted to the first date following his release from active duty accepting his commission.

	d.  this recommendation is based on the applicant meeting all physical/
administrative requirements for commissioning.  It is also recommended he 


receive pay/benefits associated with the change in date of rank as the errors that created the issue were of no fault of the applicant.

15.  The advisory official points out:

	a.  while the recommendation by the ABCMR made the applicant eligible for promotion, he had already been mobilized by his State.  He had trained/been validated for deployment as an SGT, not an officer.  To place him in a leadership position in a combat zone that he was not trained for would have placed the applicant, as well as his Soldiers, in imminent danger.

	b.  following the ABCMR ruling, the OHARNG requested an opinion from the NGB Officer Branch, Personnel Policy Division as to whether or not he could be reappointed while mobilized.  The recommendation was against promotion until after his release from active duty.

	c.  in December 2011, his company/battalion commanders met with him to discuss the issue of his reappointment.  The applicant made a determination that he would wait until after his release from active duty before taking action on reappointment.

	d.  in regard to the current application, he requests reinstatement at the rank of CPT; however, he was never promoted to that rank.  He should, however, be reinstated to 1LT.  Upon reappointment, it should be assessed as to whether or not he has met all criteria necessary for promotion consideration to CPT.

	e.  the applicant suggests he joined the OHARNG as an SGT because he was erroneously passed over for promotion (two-time non-select).  There is no indication he had any intention of joining the OHARNG as an officer, in fact, he joined in March 2009 yet he did not file for an Age-in Grade waiver until
July 2010.  Upon filing the request, the NGB notified the applicant of the administrative errors that would need to be fixed before reappointment would be possible.

	f.  while it does not seem plausible to backdate the reappointment to
March 2009, it seems in all fairness to the applicant that his date of reappointment should be backdated to the date immediately following his release from active duty, 10 September 2011, as the errors that led up to this were of no fault of his own.

	g.  considering he voluntarily accepted the position to SGT and accepted the responsibilities that come with the position he should be paid accordingly as an SGT.  This decision should not in any manner reflect negatively on his 


performance.  From all accounts, he has served in an exemplary manner during his deployment as an intelligence analyst and he would serve in the ARNG well as an officer.  At the same time, it should be noted he made every effort to be deployed as an officer; however, this was denied him.

	h.  the State concurs with this recommendation.

16.  A copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  The applicant did not respond.

17.  Paragraphs  6.1.1 (prior active commissioned service credit) and 6.1.1.3 of Department of Defense Instruction (DODI) 1312.03 (Service Credit for Commissioned Officers) states credit for prior service as a commissioned officer may not exceed 1 year for each year of commissioned service in an active status, but not on active duty, for persons appointed as Reserve commissioned officers. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests reappointment as a CPT in the OHARNG effective March 2009 with associated pay/benefits.  However, he was never promoted to CPT.

2.  Evidence shows while he was in the IRR, his packet erroneously went before the promotion board for a second time where he was non-selected for promotion to CPT.  The OHARNG was responsible for this error and the matter was corrected by the ABCMR on 18 October 2011.

3.  He contends because of his erroneous second non-selection, in March 2009 he was not permitted to reenter the military as a commissioned officer and, he had to reenter in the rank of sergeant.  However, the advisory opinion points out there is no indication he had any intention of joining the OHARNG as an officer, in fact, he enlisted in March 2009 yet did not file for an Age-in Grade waiver until
July 2010.

4.  While the recommendation by the ABCMR made the applicant eligible for promotion, he had already been mobilized by his State in his enlisted status.  Considering he voluntarily accepted the position to SGT and accepted the responsibilities that come with the position, he should be paid accordingly as an SGT and his rank should not be changed for that time period.


5.  In accordance with the NGB advisory opinion recommendation, it would be equitable to correct his record to show he was reappointed in the OHARNG at his last commissioned rank of 1LT effective 11 September 2011 (the date immediately following his release from active duty) since the issue surrounding a second non-select was resolved by the ABCMR and he was granted an Age-in Grade waiver by the NGB allowing him to serve in that rank.  

6.  In accordance with DODI 1312.03, and his prior service as a commissioned officer, it would also be equitable to adjust his date of rank to 11 September 2010.

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 Department of the Army records of the individual concerned be corrected by:

	a.  showing he was reappointed in the OHARNG on 11 September 2011 in the rank/grade of 1st lieutenant (1LT)/O-2 with a date of rank of 11 September 2010, and

	b.  paying him all back pay and allowances due as a result of this correction.

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 reappointment as a captain (CPT)/O-3 in the OHARNG effective March 2009 with associated pay/benefits.



      _______ _  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)                                         AR20110023567



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ABCMR Record of Proceedings (cont)                                         AR20110023567



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