IN THE CASE OF:	  

		BOARD DATE:  4 June 2013

		DOCKET NUMBER:  AR20120022677 


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 the date he was granted Federal recognition from the U.S. Army Reserve (USAR) to the Puerto Rico Army National Guard (PRARNG)
* consideration by a mandatory promotion board under the fiscal year 2012 (FY12) criteria

2.  The applicant states:

* he was promoted to captain (CPT) on 15 August 2005 and reached his maximum years of service (7 years) for promotion consideration to major (MAJ) in August 2012
* his promotion packet was not submitted on time due to multiple administrative errors in his personnel records
* his transfer from the USAR to the PRARNG should be backdated to 25 September 2008, the date of his appointment
* he discovered the discrepancy in the personnel records in June 2012 when he inquired with the PRARNG G-1
* the G-1 never forwarded his 2008 appointment packet to the National Guard Bureau (NGB) for Federal recognition

3.  The applicant provides:

* NGB Special Orders Number 405 AR, dated 23 November 2012
* NGB Special Orders Number 407 AR, dated 27 November 2012
* DA Form 1059 (Service School Academic Evaluation Report)
* DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 9 June 2011
* DD Form 214, dated 13 June 2006
* PRARNG Orders 293-504, dated 19 October 2008 (appointment)
* NGB Form 62E (Application for Federal Recognition in the ARNG)
* PRARNG Orders 146-101, dated 2 August 2005 (promotion to CPT)
* NGB Promotion Memorandum, dated 15 August 2005

CONSIDERATION OF EVIDENCE:

1.  The applicant's records shows he was born on XX August 1972.   

2.  Having had prior enlisted service, the applicant was appointed as a Reserve commissioned officer of the PRARNG and executed an oath of office on 30 August 1997.  

3.  He served in a variety of assignments as a Field Artillery (FA) officer and he was honorably separated in the rank of first lieutenant (1LT) on 8 March 2001.  He was transferred to the Puerto Rico Air National Guard.  

4.  On 27 November 2003, he requested a conditional waiver to transfer from the Puerto Rico Air National Guard to the PRARNG, and on 7 December 2003, he executed an oath of office for appointment as a 1LT in the PRARNG.  

5.  On 12 November 2004, the NGB withdrew Federal recognition and he was transferred to the USAR. 

6.  On 1 March 2005, the U.S. Army Human Resources Command (HRC), St. Louis, MO, issued him a promotion to CPT memorandum and on 4 March 2005, he was again appointed in the PRARNG.

7.  On 15 August 2005, the NGB issued the applicant a promotion to CPT memorandum as well as Federal Recognition Special Orders with an effective date of promotion and date of rank of 15 August 2005. 

8.  He entered active duty on 7 March 2005 and subsequently served in Kuwait/Iraq from 27 May 2005 to 9 May 2006.  He was honorably released from active duty to the control of the PRARNG on 13 June 2006.  His rank and effective date of rank are shown as CPT and 15 August 2005 respectively.  

9.  On 26 April 2007, his PRARNG Federal recognition was withdrawn by the NGB and he was transferred to the USAR. 

10.  He provides and his records contain an NGB Form 62E, dated 22 September 2008, requesting appointment as a Reserve officer of the Army in the ARNG, 13A (FA) branch.  

11.  He provides Orders 293-504, issued by the PRARNG on 19 October 2008 appointing him in the PRARNG in the rank of CPT, effective 25 September 2008, with assignment to the 124th Military Police (MP) Battalion.  

12.  He entered active duty on 20 April 2010 and served in Kosovo from 5 July 2010 to 31 March 2011.  He was honorably released from active duty to the control of the PRARNG on 9 June 2011.  His rank and effective date of rank are shows as CPT and 15 August 2005 respectively.  

13.  He provides a DA Form 1059 dated 4 May 2012 that shows he attended and successfully completed the MP Captains Career Course at Fort Leonard Wood, MO, from 20 April to 5 May 2012. 

14.  On 23 November 2012, the NGB published Special Orders Number 405 AR, extending him Federal recognition for transfer from the USAR to the PRARNG effective 25 September 2012. 

15.  On 27 November 2012, the NGB also published Special Orders Number 407 AR, extending him Federal recognition for a branch transfer from the FA to the MP branch effective 25 September 2012. 

16.  He was honorably separated from the PRARNG on 18 January 2013 and he was transferred to the USAR Control Group (Annual Training).  Consequently, the NGB published Special Orders Number 23 AR, on 24 January 2013 withdrawing his Federal recognition and transferring him to the USAR effective 18 January 2013. 

17.  An advisory opinion was obtained from the NGB on 27 March 2013.  The NGB advisory official recommended approval and the PRARNG concurred.  The official stated:

	a.  In the applicant's iPERMS file, there is an application for Federal recognition (NGB Form 62E) that shows the PRARNG requested Federal recognition for the applicant on 25 September 2008.  There is also a state Order Number 293-504 appointing him as a CPT in the PRARNG.  Although his NGB Form 62E is dated 25 September 2008, he received Federal recognition on 25 September 2012.  

	b.  Based on the lack of information provided by the PRARNG, it would be in the best interest of the applicant to honor the date on the application and the PRARNG appointment order.  The PRARNG failed to submit his Federal recognition packet to the NGB in 2008.  

	c.  The NGB recommends, and the PRARNG concurs, the applicant should receive full administrative relief to reflect an effective date of 25 September 2008. Furthermore, the NGB recommends the applicant's records by considered by a special selection board (SSB) for consideration to MAJ as a result of this correction. 

18.  The applicant was provided with a copy of this advisory opinion but he did not respond. 

19.  National Guard Regulation (NGR) 600-100 provides procedures for processing applications for Federal recognition.  Paragraph 2-1 states commissioned officers of the ARNG are appointed by 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 ARNG of the United States if they have not already accepted such appointment.  

	a.  Paragraph 2-2 states that the effective date of Federal recognition for original appointment is the date on which the commissioned officer executes the oath of office in the State. 

	b.  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. 

	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 a FRB pending final determination of eligibility and appointment as a Reserve commissioned officer of the Army.  If not sooner withdrawn or replaced by the granting of permanent Federal recognition, temporary Federal recognition will automatically terminate 6 months after the effective date of State appointment.  However, should the initial period of temporary Federal recognition expire due to administrative processing delays, through no fault of the member, a subsequent FRB should be convened to consider the request again and grant another new period of temporary Federal recognition if warranted.

	d.  Paragraph 10-15b states that temporary Federal recognition may be granted by an FRB to those eligible when the board finds that the member has successfully passed the examination prescribed herein, has subscribed to the oath of office, and has been appointed by a State order for assignment to a position vacancy in a federally recognized unit of the ARNG.  The FRB will forward the NGB Form 89 and allied documents to The Adjutant General.  When the member is favorably recommended, The Adjutant General will endorse the packet to the NGB.  If the member meets the qualifications and requirements for Federal recognition, the Chief, NGB extends permanent Federal recognition to the member in the grade and branch in which the member is qualified.

20.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes the policies and procedures for the promotion of Reserve officers.  Promotion consideration from CPT to MAJ by a mandatory Reserve Component Selection Board (RCSB) requires completion of 7 years in the lower grade.  It also states SSBs may be convened to consider or reconsider commissioned officers for promotion when Headquarters, Department of the Army discovers one or more of the following: an officer was not considered from in or above the promotion zone by a regularly scheduled board because of administrative error, (SSB required); the board that considered an officer from in or above the promotion zone acted contrary to law or made a material error (SSB discretionary); or the board that considered an officer from in or above the promotion zone did not have before it some material information (SSB discretionary).

21.  The FY12 MAJ Army Promotion List (APL) that convened in or about January 2012 considered CPTs for promotion to MAJ in the following zones:

* Above the Zone: 31 August 2005 and earlier
* Promotion Zone: 1 September 2005 through 31 August 2006
* Below the Zone: 1 September 2006 through 31 August 2007

22.  The FY13 APL that convened in or about March 2013 considered CPTs for promotion to MAJ in the following zones:

* Above the Zone: 31 August 2006 and earlier
* Promotion Zone: 1 September 2006 through 31 August 2007
* Below the Zone: 1 September 2007 through 31 August 2008

DISCUSSION AND CONCLUSIONS:

1.  The applicant was appointed in the PRARNG on 25 September 2008 despite the absence of an oath of office for this appointment.  He held the rank of CPT with a DOR of 15 August 2005.  At that time, his complete Federal recognition packet and allied documents should have been forwarded to The Adjutant General, PR, for endorsement to the NGB for an extension of permanent Federal recognition.  This action was not taken. 

2.  It is unclear why the applicant's Federal recognition packet was not processed properly.  It is equally unclear why the most important document in the ARNG appointment process – execution of the oath of office – is missing from his records.  Nevertheless, the NGB ultimately granted him Federal recognition effective 25 September 2012 (some 4 years after his appointment).  

3.  Given the existence of an NGB Form 62E together with a State appointment order in his records, and given the NGB ultimately extended him Federal recognition despite the absence of the oath of office, it appears an administrative error denied him Federal recognition effective 25 September 2008.  Based on applicable law and regulation, he is entitled to have his Federal recognition orders amended to show the effective date of permanent Federal recognition in the rank of CPT as 25 September 2008.  

4.  Furthermore, his DOR to CPT is 15 August 2005.  Had his initial Federal recognition date been correct, he would have been eligible for promotion consideration to MAJ upon meeting the promotion eligibility date of 7 years in the lower grade, i.e., the earliest board after 15 August 2012.  Therefore, he is also entitled to have his records considered by an SSB possibly under the FY11 and most certainly under the FY12 and the FY13 criteria.

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 State Army National Guard records and all Department of the Army records of the individual concerned be corrected by:

	a.  Amending Federal recognition Special Orders Number 405 AR, dated 23 November 2012, to show he was extended Federal recognition in the rank of CPT effective 25 September 2008.

	b.  Submitting the applicant’s records to a duly-constituted SSB for consideration for promotion to MAJ under the appropriate MAJ APL promotion selection board year criteria.

		(1)  That if the applicant is selected for promotion his records be further corrected by promoting him to MAJ based on his assigned promotion sequence number with the appropriate date of rank, and with all due back pay and allowances, or by assigning him the appropriate promotion sequence number for future promotion purposes. 

		(2)  That if not selected, the applicant be so notified.



      _______ _  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)                                         AR20120022677





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ABCMR Record of Proceedings (cont)                                         AR20120022677



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