IN THE CASE OF:	  

		BOARD DATE:  24 January 2013

		DOCKET NUMBER:  AR20120018827 


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 his records to show he was extended Federal recognition (FEDREC) in the Army National Guard (ARNG) of the United States (ARNGUS) effective 25 September 2009 based on his appointment in the Virginia ARNG (VAARNG).

2.  The applicant states he received a Conditional Release from the U.S. Marine Corps Reserve (USMCR) on 2 June 2009 that was valid until 19 October 2009. He was administered the Oath of Office for appointment in the VAARNG on
25 September 2009; however, he was not extended FEDREC until 25 August 2011.

3.  The applicant provides copies of the following documents:

* Application for FEDREC as an ARNG Officer, dated 7 June 2009
* Request for Conditional Release, dated 19 June 2009
* Oath of Office, dated 25 September 2009
* two Officer Evaluation Reports (OERs)
* Personnel Qualification Record
* ARNG Retirement Points History Statement
* Memorandum for Record (MFR)


CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the USMCR on 13 July 1989 and he entered active duty in the U.S. Marine Corps (USMC) on 26 October 1989.  He was appointed as a commissioned officer in the rank of second lieutenant/pay grade O-1 on
17 March 1995 and he served on active duty through 21 June 2003.  He was promoted to the rank of major (MAJ)/pay grade O-4 on 1 February 2005 in the USMCR.

2.  A memorandum, dated 3 June 2009, subject: Twenty Year Statement of Understanding, shows the applicant indicated he understood that, upon appointment in the VAARNG or Reserve of the Army, he may not be able to complete 20 years of satisfactory Federal service for retirement purposes prior to being removed from an active status under applicable laws and Army regulations.

3.  Headquarters, USMC, Quantico, VA, letter, dated 19 June 2009, approved the applicant's request for conditional release from the USMCR for appointment in the U.S. Army Reserve (USAR).  It shows the conditional release was valid for 120 days and that the applicant would be discharged from the USMCR the day prior to his appointment in the USAR.

4.  NGB Form 62E (Application for FEDREC as an ARNG Officer or Warrant Officer and Appointment as a Reserve Commissioned Officer or Warrant Officer of the ARNGUS), dated 7 June 2009, shows the applicant applied for appointment as a Reserve officer of the Army in the ARNG as a MAJ in the field artillery (FA) branch.

   a.  Page 4 shows, on unspecified dates, the Commander, Manassas, Data Processing Unit, and Commander, 91st Troop Command, respectively, endorsed the application recommending approval.
   
   b.  Pages 4 and 5 of the NGB Form 62E contain no other endorsements.

5.  An NGB Form 337 (Oaths of Office) shows the applicant was administered an oath of office for appointment in the VAARNG in the rank of MAJ on 
25 September 2009.

6.  FA Proponent Office, Fort Sill, OK, memorandum, dated 23 March 2011, subject:  Predetermination for FA Branch Appointment, shows the applicant was required to attend the FA Captain's Career Course in order to meet U.S. Army
FA officer qualifications for the rank of MAJ.

7.  On 3 August 2011, the applicant was notified of his eligibility for retired pay at age 60.

8.  An NGB Form 62E, dated 1 August 2011, shows the applicant applied for appointment as a Reserve officer of the Army in the ARNG as a MAJ in the logistics (LG) branch.
   
   a.  Page 4 shows, on unspecified dates, the Commander, Manassas, Data Processing Unit, and Commander, 91st Troop Command, respectively, endorsed the application recommending approval.  (This part of page 4 appears to be an exact replica of page 4 of the NGB Form 62E, dated 7 June 2009.)

   b.  NGB Form 89 (Proceedings of a Federal Recognition Examining Board) shows the applicant was found qualified for appointment to MAJ, LG branch, specialty 90A (Logistics, General).  On 25 August 2011, the board recommended the applicant be granted FEDREC in the rank of MAJ in the LG branch.

   c.  Pages 4 and 5 of the NGB Form 62E show, on 25 August 2011, Major General (MG) Daniel E. L---, Jr., The Adjutant General (TAG), VAARNG, recommended that the Chief, National Guard Bureau (C, NGB), appoint the applicant as a Reserve officer of the Army in the ARNG in the rank of MAJ in the LG branch.

9.  An NGB Form 337 shows the applicant was administered an oath of office for appointment in the VAARNG in the rank of MAJ on 25 August 2011.

10.  A DA Form 71 (Oath of Office - Military Personnel) shows the applicant was administered an oath of office for appointment as a Reserve commissioned officer in the rank of MAJ on 25 August 2011.

11.  NGB Special Orders Number 109 AR, dated 3 April 2012, extended the applicant FEDREC effective 25 August 2011 for the purpose of initial appointment in the VAARNG in the rank of MAJ, LG branch.

12.  VAARNG, Blackstone, VA, Orders 354-026, dated 20 December 2011, appointed the applicant in the grade of MAJ, LG branch, effective 25 August 2011.

13.  VAARNG, Blackstone, VA, Orders 088-060, dated 28 March 2012, awarded the applicant specialty skill identifier 90A effective 23 September 2011.

14.  On 17 April 2012, MG Daniel E. L---, Jr., TAG, VAARNG, notified the applicant that he was selected for retention for one year.
15.  In support of his application the applicant provides the following documents.

   a.  A DA Form 67-9 (OER) covering the period 25 September 2009 through
31 July 2010 that shows the applicant's branch was FA, his designated specialty was 53A (Systems Automation, General), his functional area was 30 (Information Operations), and he performed the principal duty of Branch Chief, Network Operations.

    	(1)  The rater evaluated the applicant's performance and potential as "Satisfactory Performance, Promote."  He commented, in part, "[Applicant] needs to actively seek completion of military education to compete in this field" and "promote when complete with required military education for his grade."

    	(2)  The senior rater evaluated his promotion potential to the next higher grade as "Best Qualified."  He commented, in part, "In the next rating period [applicant] will have to complete required military education in order to improve his military profile compared to peers."

   b.  An OER covering the period 1 August 2010 through 31 July 2011 that shows the applicant's branch was FA, his designated specialty was blank, his functional area was 53 (Systems Automation), and he performed the principal duty of Branch Chief, Network Operations.

    	(1)  The rater evaluated the applicant's performance and potential as "Satisfactory Performance, Promote."  He commented, in part, "[Applicant] scheduled the required PME [professional military education] and is well on his way to becoming competitive with his Army peers" and "has completed phases
2 and 3 of a Captain's Career Course to compensate for USMC PME that did not transfer to the Army."

    	(2)  The senior rater evaluated his promotion potential to the next higher grade as "Best Qualified."  He commented, in part, "Assign to FA 53 based on Civilian Acquired Skills" and "continue to groom for advancement and promotion."

   c.  Personnel Qualification Record (PQR) - Officers/Warrant Officers, dated
27 September 2012, that shows in:

    	(1)  Section C (Organization Data), item 16 (Date Current Process):
 25 September 2009; and

    	(2)  Section F (Individual Data), item 12 (Date Initial Entry Reserve Component):  25 September 2009
   d.  ARNG Retirement Points History Statement, dated 28 September 2012, that shows the applicant entered the ARNG on 25 September 2009.

   e.  MFR, dated 2 October 2012, that identifies two warrant officers in the VAARNG as points of contact for the applicant's Army records and PQR data.

16.  National Guard Regulation 600-100 (Commissioned Officers - Federal Recognition and Related Personnel Actions) provides procedures for processing applications for Federal recognition.

   a.  Chapter 2 (Appointments), paragraph 2-1, provides that commissioned officers of the ARNG are appointed by the several States under Article 1, Section 8, of the United States 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 ARNGUS.

    	(1)  Paragraph 2-2 (Policy) provides that the appointment of officers in the ARNG is a function of the State concerned, as distinguished from the 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.  The effective date of Federal recognition for original appointment is the date on which the commissioned officer executes the Oaths of Office in the State.

    	(2)  Paragraph 2-9 (Persons ineligible for Federal recognition unless waiver is granted) lists, in part, applicants unable to complete 20 years of creditable service for retirement or retired pay prior to mandatory removal from an active status.  It also shows that the applicant must sign a statement of understanding and the waiver authority is delegated to State adjutant generals.

    	(3)  Paragraph 2-10 (Waiver) shows that applicants requiring waivers will not be permitted to appear before a Federal Recognition Board (FRB) prior to waiver approval.

   b.  Chapter 3 (Processing Applications for Appointment and Federal Recognition), paragraph 3-1, establishes actions to be taken to initiate appointment and Federal recognition.

    	(1)  Paragraphs 3-2 and 3-3 show that the application will be returned by the immediate commander or an intermediate commander when the applicant does not meet the basic administrative prerequisites or when errors are found that cannot be corrected without returning the application.

    	(2)  Paragraph 3-5 shows that referral of the application to an FRB is required for initial appointment of officers and appointment of USAR officers in the same grade, but in a new branch.

    	(3)  Paragraph 10-19 shows that the Chief, NGB, extends permanent Federal recognition to the applicant in the grade and branch in which the individual is qualified (emphasis added).

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show he was extended FEDREC in the ARNGUS effective 25 September 2009 based on his appointment in the VAARNG.

2.  The evidence of record shows the applicant applied for FEDREC in the rank of MAJ in the FA branch on 7 June 2009.  It appears his immediate and intermediate commanders endorsed the application.  However, there is no evidence that the applicant was granted a waiver based on being unable to complete 20 years of creditable service or that he met the military education requirements for appointment in the rank of MAJ in FA at this time.  In addition, there is no evidence the applicant's application was reviewed by an FRB, that he was found qualified for appointment in the rank of MAJ in the FA branch, or that his application was endorsed by the State Adjutant General, VAARNG, to the
Chief, NGB.

3.  On 23 March 2011, it was determined that the applicant was required to attend the FA Captain's Career Course in order to meet FA officer qualifications for the rank of MAJ.

4.  On 3 August 2011, he was notified of his eligibility for retired pay at age 60.

5.  The applicant applied for appointment as a Reserve officer of the Army in the ARNG as a MAJ in the LG branch.

   a.  On 25 August 2011, the FRB and TAG, VAARNG, recommended the applicant be granted Federal recognition in the rank of MAJ in the LG branch.
   
   b.  He was administered the oath of office for appointment in the VAARNG and as a Reserve commissioned officer in the rank of MAJ on 25 August 2011 and extended Federal recognition effective 25 August 2011 for the purpose of initial appointment in the VAARNG in the rank of MAJ, LG branch.

6.  In view of the foregoing and based on the evidence of record, the date the applicant was extended Federal recognition for the purpose of initial appointment in the VAARNG in the rank of MAJ (O-4), LG branch, appears appropriate and correct and, therefore, should not be changed.

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)                                         AR20120018827



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ABCMR Record of Proceedings (cont)                                         AR20120018827



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