IN THE CASE OF:	

		BOARD DATE:	    14 January 2014

		DOCKET NUMBER:  AR20130005105 


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 reconsideration of his earlier appeal to change his Federal recognition date from 25 August 2011 to 25 September 2009.

2.  The applicant states that, since he was serving as a U.S. Marine Corps Reserve (USMCR) officer, he was already federally recognized as a major.  Since there was no break in his service, that status should have carried over and been effective in the Virginia Army National Guard (VAARNG).  He also relates that: 

	a.  The data processing unit of the VAARNG contacted him to see if he was interested in transferring so that he might make better use of his civilian-acquired skills.

	b.  He learned only from the Army Board for Correction of Military Records’ (ABCMR) review of his case that the initial accession request and application for Federal recognition had never been reviewed by the Virginia Adjutant General or the National Guard Bureau (NGB).

	c.  The original request went to the NGB listing him as an infantry officer and of course he wasn't qualified in that branch.  Then he was not told that he was not educationally qualified as an artillery major.

	d.  If he had been told that he would have to start in the VAARNG as a captain, he would, at least have had some options.  However, he was sworn in, served, and was paid as a major.
   e.  He chose to attend the Logistics Branch career course because that was located closer and was less disruptive of his other obligations.  

   f.  In August 2011, when he appeared before yet another VAARNG Federal recognition board, the senior advisor to that board opined that as a major in the USMCR he was effectively Federally recognized.

3.  The applicant provides copies of:

* Oath of Office, as a VAARNG major, dated 29 September 2009
* Request for Conditional Release, dated 19 June 2009
* NGB Form 62E (Application for Federal Recognition), dated 7 June 2009
* Personnel Qualification Record-Officers/Warrant Officers, dated 24 February 2013
* Army National Guard Retirement Points History Statement, dated 19 February 2013 
* DD Form 214 (Certificate of Release or Discharge from Active Duty) 
* Certificate of Appointment as a major in the USMCR, effective 1 February 2005

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20120018827 on 24 January 2013.

2.  The applicant served on active duty in an enlisted status in the USMC from 1989 to 1995 when he was commissioned.  He continued on active duty until 21 June 2003 when he was voluntarily transferred to the USMCR as a captain.  He had completed 13 years, 7 months, and 27 days of active duty service.

3.  He served in the USMCR and was promoted to major on 1 February 2005.  On 19 June 2009, he requested a conditional release so he could join the VAARNG.

4.  He took the oath of office as a major in the VAARNG on 25 September 2009.  

5.  In a 22 December 2010 memorandum the Chief, Officer Actions Branch, VAARNG asked the Chief, NGB to determine the applicant’s status relative to the military education requirements for major.  An educational waiver based upon his training and experience as a USMC major was requested.


6.  A 23 March 2011 memorandum from the Director, Field Artillery Office noted that, since the applicant had received only the requisite training for a USMC field artillery captain, he must attend the Field Artillery Captain's Career Course to meet the U.S. Army field artillery educational qualification for major.

7.  On 3 August 2011 the applicant was nortified of his eligibility for retired pay at age 60 (a 20-year letter).

8.  Between 25 September 2009 and 31 July 2011 the applicant received three officer evaluation reports (OERs) as a major.  He was marked in the first or second block by his raters and exclusively in the top block by his senior raters.

9.  He took the oath of office as a VAARNG major in the Logistics Branch on 25 August 2011.  The applicant completed the Combined Logistics Captain's Career Course on 23 September 2011.  NGB Special Orders Number 109 AR, dated 3 April 2012, extended Federal recognition as a logistics major, effective 25 August 2011.  

10.  The applicant submitted his request for reconsideration of the ABCMR's 24 January 2013 denial of his request via the Commander, 91st Troop Command, VAARNG and the VAARNG, G1 both of whom supported his request. 

11.  A 3 October 2013 memorandum informed the applicant of his second nonelection for promotion to lieutenant colonel because he was not educationally qualified.  

12.  During the processing of this request for reconsideration an advisory opinion was obtained from the NGB.  The Chief, Personnel Policy Division:

	a.  reviewed the various delays in the applicant’s case and noted that none were the fault of the applicant;

	b.  noted that the applicant was not educationally qualified for appointment as a field artillery major and that the State of Virginia had been so informed;

	c.  observed that the Board could, nevertheless, adjust the applicant's date of rank; and

	d.  recommended that no pay or allowances be recouped. 


13.  The advisory opinion was forwarded to the applicant for his comment.  He:

	a.  noted that he was eligible for consideration for promotion to lieutenant colonel when he joined the VAARNG, but knew that because he was not educationally qualified he was not allowed to enroll because his status as a major was undetermined;

	b.  reported he was, eventually, considered for promotion and not selected because he was not educationally qualified and believed this would occur again; and 

	c.  observed that it seemed time to move-on and asked that the Board reach a decision that would help him retire as soon as possible.  

14.  In a subsequent telephone conversation with the analyst the applicant reported it had been determined that, because of his time in the USMCR, he was eligible to retire as a major and he had done so.  He stated that all he really wanted the Board to do was to curtail any possible recoupment of pay and allowances.

15.  National Guard Regulation 600-100 prescribes policies and procedures governing, in part, the appointment and Federal Recognition commissioned officers of the ARNG.  It states the appointment of officers in the ARNG is a function of the State.  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.

16.  Authority granted to the Secretaries of the Military Departments in Secretary of Defense Memorandum, Subject:  Redelegation of Authority under Executive Order 12396, dated 9 December 1982, to appoint officers under section 624 of Title 10, U. S. Code, in the grades of O-2 and O-3 was rescinded effective 1 July 2005 based on advice from the Department of Justice that prohibits redelegation below the Secretary of Defense of the President’s authority to appoint military officers.  All military officer appointments under section 12203 of Title 10, U. S. Code, including original appointments, in the Reserve of the Army, Reserve of the Air Force, Naval Reserve, and Marine Corps Reserve, not previously approved by 30 June 2005, shall also be submitted to the Secretary of Defense.

17.  Title 10, U.S. Code, section 1552(a)(1), allows the Secretary of a military department to correct any military record of the Secretary’s department when the Secretary considers it necessary to correct an error or restore an injustice.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states that the VAARNG approached him.  He should not have to suffer the consequences when none of the delays were his fault.  Furthermore, had he known that there was some question about his qualification for major he might have made some other decision.

2.  The applicant was sworn in as an ARNG major on 25 September 2009, but no branch was specified in on that document nor is there a provision for a branch to be listed on the NGB form provided for that purpose.  He served and was evaluated as a major from that date until he retired.

3.  In December 2010, 15 months after the applicant was administered the oath of office as a major, the VAARNG asked for a determination of his educational qualifications and suggested a waiver based on his previous training and experience.  Approximately four months later, the Field Artillery Branch informed the NGB that the applicant was not educationally qualified.

4.  The applicant should not be held responsible for administrative procedures that were beyond his control. 

5.  The only way that the date the applicant was granted Federal Recognition could be changed would be to show that the Secretary of Defense approved his appointment on an earlier date.  However, the ABCMR has no jurisdiction over Department of Defense records and therefore could not make that type of correction.

6.  However, it would be in the interest of justice to correct his record to show his date of rank as a major is 25 September 2009.  It would also be appropriate to show he was granted de facto status for the time he served as a major prior to receiving Federal recognition to prevent any attempts to recoup any pay and allowances from him.

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 partial amendment of the ABCMR’s decision in Docket Number AR20120018827 dated 24 January 2013.  As a result, the Board recommends that all Department of the Army and State Army National Guard records of the individual concerned be corrected by:

   a.  correcting his initial appointment Federal recognition orders to show his date of rank as a major (pay grade O-4) is 25 September 2009; and 

   b.  showing he was granted de facto status for the time he served as a major prior to receiving Federal recognition to prevent any attempts to recoup any pay and allowances from him. 

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 changing his Federal recognition date.



      __________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)                                         AR20130005105





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ABCMR Record of Proceedings (cont)                                         AR20130005105



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