IN THE CASE OF:	  

		BOARD DATE:	  6 September 2012

		DOCKET NUMBER:  AR20120004380 


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, in effect, extension of permanent Federal recognition in the Pennsylvania Army National Guard (PAARNG) in the rank of major (MAJ) effective 8 July 2008.

2.  The applicant states:

	a.  He needs a Federal Recognition date for MAJ of 8 July 2008.  He was in the PAARNG and he transferred back to the PAARNG on that date.  He was considered by a Federal Recognition Examining Board (FREB) and sworn in on that date.  He was told it was a temporary Federal recognition and that he needed permanent Federal recognition.

	b.  He then deployed to Iraq essentially all of 2009 and upon his return, he elected to retire as of 18 March 2010.  He retired and he was placed in the Retired Reserve.  After that he was informed he could not actually retire since he never received permanent Federal recognition on his entry in the PAARNG.

3.  The applicant provides:

* Special Order A-654, issued by the Commonwealth of Pennsylvania, Department of Military and Veterans Affairs, The Adjutant General, Annville, PA, dated 11 September 2006
* National Guard Bureau (NGB) Form 337 (Oaths of Office), dated 11 July 2008
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 17 March 2010
* ARNG Current Annual Statement, prepared on 9 April 2010
* Orders 215-1008, issued by the Commonwealth of Pennsylvania, Department of Military and Veterans Affairs, The Adjutant General, Annville, PA, dated 3 August 2010

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.  With prior ARNG and active duty enlisted service, the applicant was appointed in the PAARNG as a second lieutenant on 24 April 1995.  On 22 November 1995, he was honorably separated from the PAARNG and he was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training).  He was promoted to captain (CPT) on 25 July 2001.

3.  On 8 April 2005, he was again appointed in the PAARNG.  He entered active duty on 6 September 2005 and he served in Iraq from 8 September 2005 to
21 January 2006.

4.  Special Order A-654, dated 11 September 2006, promoted the applicant to MAJ in the PAARNG effective upon extension of Federal recognition.

5.  He was discharged from the PAARNG in the rank of MAJ on 10 July 2008.

6.  On 11 July 2008, an FREB was held by the PAARNG to determine if the applicant was qualified to be awarded Federal recognition for appointment as a MAJ.  The proceedings indicated the applicant was satisfactory in his physical qualifications, moral character, and general qualifications.  The FREB also recommended the applicant be granted Federal recognition.

7.  Orders 200-1027, issued by the Commonwealth of Pennsylvania, Department of Military and Veterans Affairs, The Adjutant General, Annville, PA, dated
18 July 2008, appointed him the PAARNG, Army Medical Specialist Corps, in the rank of MAJ, effective 11 July 2008.  He executed an NGB Form 337 on 11 July 2008.

8.  A review of his Army Military Human Resources Record (AMHRR) (formerly known as the Official Military Personnel File (OMPF)) located on the interactive Personnel Electronic Records Management System (iPERMS) failed to indicate he was extended permanent Federal recognition for this appointment.

9.  He was again ordered to active duty in support of Operation Iraqi Freedom and he entered active duty on 26 January 2009.  He was honorably released from active duty on 17 March 2010 and he was transferred his PAARNG unit in Annville, PA.

10.  On 9 April 2010, a memorandum, subject:  Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter), notified the applicant that having completed the required years of service, he would be eligible for retired pay upon application at age 60.  He was also issued an ARNG Current Annual Statement crediting him with 22 years of creditable service for retired pay.

11.  Orders 215-1008, dated 3 August 2010, separated him from the PAARNG effective 18 March 2010 and transferred him to the Retired Reserve.

12.  National Guard Regulation 600-100 (Commissioned Officers – Federal Recognition and Related Personnel Actions) prescribes the procedures governing the appointment, assignment, temporary/permanent Federal Recognition of commissioned officers.  The regulation states in:

	a.  Paragraph 2-2a that appointment of an officer in the ARNG is a function of the State concerned, as distinguished from Federal recognition of such appointment.  Upon appointment in the ARNG of a State and subscribing to an oath of office, an individual has a State status under which to function.  Such individuals acquire a Federal status when they are Federally recognized and appointed as a Reserve of the Army.

	b.  Paragraph 2-2b states the effective date of Federal recognition for original appointment is that date on which the commissioned officer executed the oath of office in the State.  Federal recognition will continue in effect as long as the commissioned officer continues to meet requirements of the grade and position or until recognition is withdrawn with regulations, or as otherwise provided by law.

	c.  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 an FREB pending final determination of eligibility and appointment as a Reserve commissioned officer of the Army.  Such recognition may be withdrawn at any time.  If not sooner withdrawn or replaced, temporary Federal recognition will automatically terminate 6 months after the effective date of State appointment.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows an FREB granted the applicant temporary appointment in the rank of MAJ in the PAARNG on 11 July 2008.  He executed an oath of office on the same date.  He was issued a 20-Year letter on 9 April 2010.

2.  There is no indication in his records to show he was extended permanent Federal recognition for the 11 July 2008 appointment in the PAARNG.  In accordance with pertinent regulations he should have been granted permanent Federal recognition within 6 months that would continue in effect as long as the officer continued to meet requirements of the grade and position.

3.  On 3 August 2010, he was issued orders separating him from the PAARNG with an effective date of 18 March 2010.  He was transferred to the Retired Reserve.

4.  In view of the circumstances in this case, he is entitled to correction of his records to show he was appointed in the PAARNG and extended permanent Federal recognition as a MAJ effective 8 July 2008.

BOARD VOTE:

____x___  ___x____  ____x___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that the State Army National Guard records and the Department of the Army records of the individual concerned be corrected by showing the applicant was appointed in the PAARNG and extended permanent Federal recognition as a major effective 8 July 2008.



      ___________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)                                         AR20120004380



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120004380



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1