BOARD DATE: 2 February 2016 DOCKET NUMBER: AR20150006884 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 his appointment date and date of rank (DOR) to second lieutenant (2LT) in the Oregon Army National Guard (ORARNG) be changed from 24 September 2013 to 21 June 2010. 2. As an alternative solution to amending the date of appointment, he requests the period June 2010 to September 2013 be credited towards completion of his service obligation in a unit of the Selected Reserve (ARNG or U.S. Army Reserve (USAR) troop program unit (TPU)) and adjustment of the ARNG systems accordingly. 3. The applicant states upon graduation from the U.S. Merchant Marine Academy (USMMA), he was commissionable, willing and able to serve in a capacity compliant with his service obligation in the ARNG, in accordance with the Memorandum of Understanding (MOU) between the National Guard Bureau (NGB) and the USMMA. Complications in obtaining his commission were beyond his control and the length of time necessary to complete the process, he believes, were unusual and beyond due process. His State Adjutant General is unable to assist him with a resolution to this injustice, as evidenced by the attached memorandum for record (MFR), dated 6 May 2014 signed by the Officer Personnel Manager, and other supporting MFRs by the ORARNG staff. 4. The applicant provides: * MFR, dated 6 May 2014, subject: Direct Appointment Background * MFR, dated 6 May 2014, subject: Appointment of Applicant into the ORARNG * Multiple Certificates of Discharge to Merchant Seaman * Two U.S. Coast Guard Certificate of Discharge to Merchant Mariner * Guard Annex (Enlistment/Reenlistment Agreement) * Questionnaire for National Security Position * DA Form 5435 (Selected Reserve Montgomery GI Bill) * DD Form 4 (Enlistment/Reenlistment Document) * DD Form 1966 (Record of Military Processing) * ARNG Applicant Data Report * June 2010 Oaths of Office * Email exchanged with various individuals * DD Form 368 (Request for Conditional Release) * Transfer to Inactive National Guard (ING) * Multiple assignment, attachment, or release orders * Multiple notifications of training/annual training/active duty for training * Interstate transfer acceptance * NGB Form 22 (Report of Separation and Record of Service) * ARNG discharge orders (enlisted) * ARNG Honorable Discharge Certificate (enlisted) * NGB Form 62 (Application for Federal Recognition as an ARNG Officer and Appointment as a Reserve commissioned officer of the Army in the ARNG) * NGB Form 89 (Proceedings of a Federal Recognition Examining Board) * September 2013 Oaths of Office * DA Form 71 (Oath of Office-Military Personnel) * USMMA Graduate's Service Obligation * MOU, dated 11 June 2008, Appointment of Merchant Marine Academy Graduates into the National Guard and the Maritime Liaison Program CONSIDERATION OF EVIDENCE: 1. The applicant was a student/cadet at the USMMA in Kings Point, NY, from 6 July 2006 to 30 April 2010. He graduated with a Bachelor of Science degree. 2. He enlisted in the NYARNG for 6 years in the rank/grade of private first class (PFC)/E-3 on 28 May 2010. He enlisted for assignment to Headquarters and Headquarters Company (HHC), 1st Battalion, 69th Infantry, and attending school in the Simultaneous Membership Program (SMP). 3. On 16 February 2011, the NYARNG published Orders 047-1085 reassigning him to the Inactive National Guard (ING) of HHC, 1st Battalion, 69th Infantry (Rear), effective 12 February 2011. 4. On 22 September 2011, the NYARNG published Orders 265-1060 reassigning him to the ING of the 69th Infantry, in a different position within the 1st Battalion, 69th Infantry, effective 21 September 2011. 5. On 9 March 2012, the NYARNG published Orders 069-1025 releasing him from the ING and assigning him to the 1st Battalion, 69th Infantry, effective 9 March 2012, to attend school. 6. On 16 July 2012, the NYARNG published Orders 198-1031, releasing him from the NYARNG and reassigning him to the Joint Force Headquarters, ORARNG, effective 21 May 2012. 7. He was honorably discharged from his enlisted status in the ORARNG on 23 September 2013 to accept a commission in the ARNG. His NGB Form 22 credited him with 3 years, 3 months, and 26 days of ARNG service from 28 May 2010 to 23 September 2013. 8. Meanwhile, on 24 September 2013, he submitted an application for appointment as a commissioned officer of the Army and the ARNG. His application was endorsed by the ORARNG chain of command. 9. On 24 September 2013, a Federal Recognition Board (FRB) was held by the ORARNG to determine if the applicant was qualified to be awarded Federal recognition. The proceedings indicated the applicant was satisfactory in his physical qualifications, moral character, and general qualifications. 10. On 24 September 2013, the applicant executed an oath of office in the USAR and an oath of office in the ORARNG. 11. On 26 September 2013, the ORARNG published Orders 269-019: * discharging the applicant from his enlisted status effective 23 September 2013 * appointing him as a second lieutenant (2LT), Transportation Corps officer, platoon leader, in the ORARNG with assignment to the Brigade Support Battalion, Portland, OR 12. On 25 October 2013, the ORARNG published Orders 298-009 attaching him to Joint Force Headquarters, Salem, OR for administration, training, and pay effective 25 October 2013. 13. On 30 January 2014, the ORARNG published Orders 030-138 reassigning him to another position within the Joint Force Headquarters, Salem, OR for administration, training, and pay effective 1 January 2014. 14. On 14 February 2014, the ORARNG published Orders 045-055 assigning him to another position within the Joint Force Headquarters, effective 14 February 2014. 15. On 6 May 2014, three individuals submitted MFRs in relation to the applicant's issue: a. The S-3, 1249th Engineer Battalion, ORARNG stated the purpose for his MFR is to provide background and timeline information into the Direct Appointment process for the applicant. He (the author) was assigned as the Commander, B Company, Recruiting and Retention Battalion, ORARNG from 1 October 2010 to 4 September 2012. As such, he performed the additional duties of Officer Strength Manager (OSM) with responsibilities to identify qualified officer applicants, collect all required documentation, and liaison with the units for assignments. He assumed responsibility for the applicant's direct appointment packet on 19 April 2011 and submitted the completed packet to the 41st Infantry Brigade Combat Team (IBCT) OPM (Officer Personnel Manager) on 17 July 2012. The primary reasons for the unusual length of time to complete the packet are as follows: (1) The ORARNG was not aware of the agreement between the NGB and USMMA that allowed for the direct appointment of a USMMA graduate. Upon request, he received a copy of the MOU between the NGB and USMMA from Captain (CPT) Gi-----ki, Army Liaison Officer for the USMMA, on 18 August 2011, and promptly provided it to the Deputy Chief of Staff for Personnel (Officer Affairs) (DCSPER-O) for confirmation. DCSPER-O confirmed the validity of the MOU with the Policy Branch at the NGB on 12 October 2011. (2) The applicant was assigned as a PFC to the NYARNG, lived in Idaho and worked as a ship's engineer on 4-month tours at a time. This unique set of circumstances dramatically complicated and delayed responsiveness for receiving documents and making timely coordination. To mitigate this issue, he arranged for the applicant to be Interstate Transferred (IST) to the ORARNG. The IST process was not pursued until all issues identified in this MFR were solved. Further, the NYARNG had previously placed the applicant into the ING to keep him from NO-VAL (a category of negative end strength). The process to bring him back into active status and transfer him to the ORARNG was not completed until approximately 19 May 2012. (3) The MOU between the NGB and USMMA referenced placement for USMMA personnel into Maritime Liaison Officer positions, which the ORARNG did not have. The challenge was to identify a unit and position to assign the applicant against for his direct appointment. Due to his unique requirements as a ship's engineer (deploying on a vessel for six-to-eight months per year), it was extremely difficult to find a unit to assign him to. The concerns were two-fold: First, the "NO-VAL Pay." A Soldier who is unable to perform drill for a period of four months is automatically reported as NO-VAL, a category of negative end strength that is reported to NGB and is used as an indicator of a State's overall performance; traditional units would not be in a position to manage the NO-VAL pay issue. Second, officers are leaders by design and must be able to perform their unit's scheduled drills and annual training periods. Unit commanders did not want a 2LT assigned that would not be present or able to train Soldiers. Further, such an arrangement would be detrimental to the development of the 2LT as he would not gain any experience due to absence. (4) Taking into consideration the points identified above, heads of numerous departments in ORARNG met on several occasions to discuss how the ORARNG would proceed with the applicant's appointment. Ultimately it was decided that he would be appointed in a traditional line-unit and immediately transferred against the Joint Operations Center where he could advise the ORARNG on maritime matters. (5) Once his IST was completed, he (the author) went about completing his direct appointment packet for submittal to the FRB. However, due to the amount of time it took to complete the process mentioned above, the applicant's chapter 2 commissioning physical expired and the majority of the documents previously produced had to be updated. He underwent the chapter 2 on or about 7 June 2012. He (the author) gathered the required signatures, finalized the documentation and submitted the complete packet through channels on 17 July 2012. b. The Officer Strength Manager, ORARNG, outlined his involvement in the appointment process. He states he spoke with CPT H----ch (the author of the MFR mentioned in sub-paragraph (a) above) several times in 2011 and 2012, while he was the OPM for 41st IBCT, regarding the applicant's appointment packet, but he was not actively involved in the preparation/completion of his packet at that time. When he transferred from the 41st IBCT to the ORARNG Element Joint Force Headquarter in June 2012, he briefed his replacement, Chief Warrant Officer Two (CW2) La----hr, on the information he had about the applicant working with CPT H-----h to build/complete an appointment packet. At the beginning of September 2013, he took over as the primary on the applicant's appointment and worked actively with CW2 S---t, the State Officer Records Branch Chief. He (the author) remained actively involved in this process until the applicant's completed appointment packet was submitted to the NGB on or about 26 September 2013. c. An MFR from CW2 S--t, Chief, Officer Personnel Branch, ORARNG states his memorandum is intended to illustrate the challenges the applicant encountered in his commission into the ORARNG. On 12 September 2013, he (the author) received an email from CW2 La----hr with the applicant's appointment packet attached. In the email, she stated that she believed the applicant’s packet was ready to go before the FRB. Upon receipt, there was some confusion about whether the applicant’s packet could go to the FRB or if they had to submit the packet to NGB for approval as a direct commission. The reason for the confusion was due to his source of commission being from the USMMA. On 16 September 2013, he received an email from CW2 G--en. In the body of the email was an email from the CPT in the NYARNG stating there had been a change to Title 32 recognizing USMMA as a source which could change the whole process and make it easier. On 18 September 2013, he emailed an officer at the NGB seeking clarification and guidance. The NGB officer responded with a validation that the law allowed the ORARNG to use USMMA as a commissioning source into the ORARNG and that they could move forward with sending the his packet to the FRB. On 24 September 2013, the commissioning packet was sent to the FRB and approved. The applicant’s State appointment order was published on 26 September 2014 with an effective date of 24 September 2013. 16. On 16 April 2015, Joint Force Headquarters, ORARNG published a memorandum to the NGB indicating a promotion extension waiver for the applicant beyond 24 months (post promotion eligibility date) was approved effective 24 March 2015 and expires on 24 September 2015. 17. He entered active duty on 19 April 2015 and successfully completed the Transportation Basic Officer Leader Course (BOLC) from 19 April to 7 August 2015. He was honorably released from active duty on 7 August 2015. 18. On 20 April 2015, the Secretary of Defense approved a scroll that contains the applicant's name. The scroll appointed several members, including the applicant, as an ARNG officer in the rank of 2LT. 19. On 25 August 2015, the ORARNG published Orders 237-003 promoting him to first lieutenant (1LT) effective 13 August 2015. 20. An advisory opinion was received from the NGB on 2 October 2015 in the processing of this case. An NGB official stated: a. The Soldier requests adjustment of his DOR from 24 September 2013 to 21 June 2010. He claims he was eligible to be commissioned as a 2LT in the ARNG upon graduation from the USMMA, but several complications beyond his control delayed his appointment. The NGB recommends partial approval to adjust his DOR and effective DOR to 21 May 2012 to partially correct the injustice manifested in the extreme delay of his commissioned service, but still be in compliance with Army Regulation (AR) AR 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers). b. The NGB and USMMA signed an MOU in June 2008 that defined the mutually agreed upon requirements, expectations, and roles in which the NGB exercises Federal oversight over the ARNG, Air National Guard (ANG), and USMMA regarding the commissioning of USMMA graduates as 2LTs in the National Guard. This MOU permitted USMMA graduates to commission as 2LTs in the ARNG using the same commissioning process as graduates of other service academies. These graduates were intended to fill Maritime Liaison Officer positions in Joint Force Headquarters. c. The applicant enlisted in the NYARNG for 6 years as an E-3 on 28 May 2010, according to his DD Form 4 (Enlistment/Reenlistment Document). He completed a Bachelor of Science degree from the USMMA on 21 June 2010, according to his transcripts. He incurred a service obligation to the Federal government that requires employment as a merchant marine or in the maritime industry, maintaining U.S. Coast Guard license, commission in a reserve component of the armed services, and reporting his compliance with the first three elements, according to a U.S. Department of Transportation Maritime Administration memorandum, dated 17 June 2010. d. He took an oath of office for appointment as a 2LT in the Montana Army National Guard (MTARNG) on 21 June 2010, according to his NGB Form 337. According to his memorandum to the Maritime Administration - Office of Workforce Development, dated 6 May 2014, he lost the billet he had been offered with the MTARNG in 2011 due to his employment as a merchant marine. He was never appointed in the MTARNG, but the NGB Form 337 indicates he applied for accession, in accordance with paragraph 3(b)(3) of the MOU. e. The NYARNG released him from HHC, 1-69th Infantry to the ING on 12 February 2011 due to NOVAL status, according to NYARNG Orders Number 047-1085. The NYARNG placed him in the ING seemingly due to an inability to work with his Merchant Marine service obligation, according to the ORNG State Advisory Opinion memorandum dated 3 September 2015. He was released from the ING to a Combat Medic position with HHC, 1-169th Infantry on 9 March 2012, according to NYARNG Orders Number 069-1025. f. He transferred from the Combat Medic position with HHC, 1-69th Infantry of the NYARNG to an 09R position at the ORNG Joint Force Headquarters effective 21 May 2012, according to ORNG orders 198-1031, dated 16 July 2012. PPOM Number 13-012 states the 09R primary military occupational specialty (PMOS) is a Reserve Officers' Corps Training (ROTC) Program cadet and "until the Soldier is contracted as an ROTC cadet, (DA Form 597 or 5973 and NGB Form 5941) they are considered an enlisted Soldier and assigned against an enlisted position. They may be enlisted and carried in PMOS 09R until they are contracted as a senior cadet." This was his first assignment at a Joint Force Headquarters and was the first opportunity for the Soldier to serve as a Maritime Liaison Officer and meet the intent of the MOU. g. The ORARNG appointed the Soldier as a 2LT on 24 September 2013, according to ORNG orders 269-019, dated 26 September 2013. He also took an oath of office as 2LT in the ORARNG on 24 September 2013, according to his NGB Form 337 (Oaths of Office). The Soldier was Federally recognized on 20 April 2015 with an effective DOR of 24 September 2013. h. He graduated from the Transportation BOLC on 7 August 2015, according to his DA Form 1059 (Service School Academic Evaluation). Completion of BOLC is a requirement for promotion to 1LT, according to Table 2-1 of AR 135-155. The maximum time in grade for a 2LT is 42 months according to Table 2-2 of the same regulation. He had nearly 23 months' time in grade as a 2LT when he completed Transportation BOLC. i. Paragraph 4.a of the MOU also states the NGB will: "(1) Determine the prerequisites for selecting USMMA Graduates and other Maritime school U.S. Coast Guard licensed Officers to fill Maritime Liaison positions in the Joint Force Headquarters; (2) Coordinate with states mismanagement/misunderstanding/ ignorance of the NGB/USAMMA agreement for employment of USMMA graduates that led to his utilization outside of the terms of that agreement." 21. The applicant was provided a copy of this advisory opinion on 14 October 2015 but he did not respond. 22. On 29 December 2015, the NGB published Special Orders Number 280 AR extending him Federal recognition for initial appointment with an effective date of 24 September 2013 and a DOR of 24 September 2013. 23. An MOU, dated 2008, between the NGB and the USMMA outlined the appointment of USMMA Graduates into the National Guard the Maritime liaison Program. The purpose of the MOU defines the mutually agreed upon requirements, expectations, and roles of NGB (which exercises Federal oversight over the ARNG and the ANG and the USMMA regarding the commissioning of USMMA graduates as 2LTs into the National Guard. This MOU also includes requirements, expectations, and roles regarding the creation of the Maritime liaison Program and the placement of qualified candidates into authorized Joint Force Headquarters positions located at the State and Territory level. 24. DOD Instruction Number 1310.02 (Appointment of Commissioned Officers), dated 8 May 2007, updates policy governing the appointment of persons as Reserve commissioned officers and continues to implement sections 12201, 12203, 12204, 12205, and 12206 of Title 10, U.S. Code. Section 6.1.3 (Secretary of Defense Appointments) states all appointments of military officers (including all original appointments and appointment of officers who previously held a commission) in the grades second lieutenant through captain in the Army, Air Force, and Marine Corps or to the grades of ensign through lieutenant in the Navy shall be made by the Secretary of Defense based on Presidential delegations according to Executive Order 12396, 13358, and 13384. This appointment authority applies unless otherwise provided in Reference (d) that Presidential appointment is required and has not been delegated. This Secretary of Defense authority may not be further delegated. 25. Title 10, U.S. Code, section 1552, provides that the ABCMR acts on behalf of the Secretary of the Army in correcting Army records. This statute does not provide the Board with authority to correct a determination reserved under law to the Secretary of Defense. 26. Executive Order 13358, dated 30 September 2004, states the White House delegated the authority of the President to appoint officers in the USAR to the Secretary of Defense with no further sub-delegation authorized. 27. AR 135-100 (Appointment of Commissioned and Warrant Officers of the Army) prescribes the policies and procedures for the appointment of commissioned officers in the USAR. 28. Title 32, U.S. Code, section 305 (Federal recognition of commissioned officers: persons eligible) states in subsection (a), the following categories are eligible for Federal recognition as commissioned officers of the National Guard: (1) Members of the National Guard; (2) Members of the armed forces; (3) Former officers of the armed forces; (4) Former enlisted members of the armed forces who were discharged honorably or under honorable conditions; (5) Graduates of the United States Military Academy, the United States Naval Academy, the United States Air Force Academy, the United States Coast Guard Academy, or the United States Merchant Marine Academy; (6) Graduates of a school, college, university, or officer’s training camp who received military instruction under the supervision of a commissioned officer of the Regular Army or the Regular Air Force, and whose fitness for appointment has been certified by that officer; and (7) Civilians who are specially qualified for duty in a technical or staff branch or organization. 29. Public Law 111-383, dated 7 January 2011, section 517 (Direct Appointment of Graduates of the United States Merchant Marine Academy into The National Guard), states section 305(a) of Title 32, U.S. Code, is amended by striking "or the United States Guard Academy" and inserting "the United States Cost Guard Academy, or the United States Merchant Marine Academy." DISCUSSION AND CONCLUSIONS: 1. The available evidence shows the applicant was a student/cadet at the USMMA in Kings Point, NY, from 6 July 2006 to 30 April 2010 and he graduated with a Bachelor of Science degree. Based on the NGB's research, prior to his enlistment in the NYARNG, the applicant took an oath of office for appointment as a 2LT in the MTARNG on 21 June 2010. The NGB also determined he lost the billet he had been offered with the MTARNG in 2011 due to his employment as a merchant marine. It appears he applied for accession but he was never appointed in the MTARNG. 2. He enlisted in the NYARNG for 6 years in the rank/grade of PFC/E-3 on 28 May 2010. His enlistment contract shows he enlisted for assignment to HHC, 1st Battalion, 69th Infantry. The NYARNG released him from 1-69th Infantry to the ING on 12 February 2011 due to NOVAL status. The NYARNG placed him in the ING seemingly due to an inability to work with his Merchant Marine service obligation. He was released from the ING to a position with HHC, 1-169th Infantry on 9 March 2012. 3. He transferred from the 1-69th Infantry of the NYARNG into an 09R position at the ARNG Joint Force Headquarters, effective 21 May 2012. Until the Soldier is contracted as an ROTC cadet (DA Form 597 or 5973, and NGB Form 5941), they are considered an enlisted Soldier and assigned against an enlisted position. This was his first assignment at a Joint Force Headquarters and was the first opportunity for the applicant to serve as a Maritime Liaison Officer and meet the intent of the MOU. 4. After all the delays had been cleared up, an FRB considered him for appointment and the ORARNG appointed him as a 2LT on 24 September 2013. He also executed an oath of office as 2LT in the ORARNG on 24 September 2013. He was scrolled by the Secretary of Defense on 20 April 2015 with an effective DOR of 24 September 2013. 5. All military officer appointments under Title 10, U.S. Code, in the Reserve of the Army not previously approved by 30 June 2005, including original appointments, shall be submitted to the Secretary of Defense. The scroll is issued monthly. Scrolls take time to be approved by the Secretary of Defense due to the fact that the lists are processed through multiple offices before being approved by the Secretary of Defense. 6. Nevertheless, it is clear that administrative errors were committed in the processing of the applicant’s appointment. It is equally clear that the administrative errors in the processing of his appointment caused him to be penalized for an action that was beyond his control. He should not be penalized by the MTARNG, NYARNG, ORARNG, or NGB's failure to act. 7. The appointment scroll, while prepared by the Army, is a Secretary of Defense document. As such, the ABCMR has no authority to change an appointment scroll. However, the ABCMR does have the authority to amend appointment and assignment orders of Army officers. 8. As a matter of equity and consistent with the NGB's advisory opinion, the applicant’s records should be corrected to show he was scrolled/appointed by the Secretary of Defense on 20 April 2015 with a DOR of 21 May 2012. This is the date the NYARNG published Orders 198-1031, releasing him from the NYARNG and reassigning him to the Joint Force Headquarters, ORARNG. 9. His contention that, as an alternative solution to amending the date of appointment, the period June 2010 to September 2013 be credited towards completion of his service obligation in a unit of the Selected Reserve (ARNG or USAR) TPU cannot be supported. He was in an enlisted status during this period (28 May 2010 to 23 September 2013), and part of this period was in the ING. Service obligations for commissioned officers are statutory as well as contractual. 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 amending Federal Recognition Special Orders Number 280 AR, issued by the NGB on 29 December 2015, to show his date of rank as 21 May 2012 vice 24 September 2013. 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 amending his appointment date to 21 June 2010. _______ _ 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) AR20150006884 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150006884 12 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1