IN THE CASE OF: BOARD DATE: 9 September 2010 DOCKET NUMBER: AR20100007575 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 an earlier appeal to have her initial appointment effective date and second lieutenant (2LT) date of rank (DOR) adjusted to 10 March 2006 and that her first lieutenant (1LT) DOR be adjusted accordingly. 2. The applicant states she was not given the opportunity to submit a rebuttal to an advisory opinion she was sent. The applicant states she was deployed in support of Operation Iraqi Freedom at the time her case was being reviewed by the Army Board for Correction of Military Records (ABCMR). The applicant states her mail was forwarded to a Post Office (P.O.) Box and she did not receive the notification letter in time from the Board. The applicant continues that she did not find out the results of her application to the ABCMR until she checked her interactive Personnel Electronic Records Management System (IPERMS) record and discovered her case was denied. 3. The applicant further states she contacted a Medical Personnel Program Manager from the Office of the Chief Surgeon (OTCS), National Guard Bureau (NGB) and was informed the OTCS was not consulted in the decision to deny her request to correct her initial appointment date and adjust her DOR. The applicant states her DA Form 67-9 (Officer Evaluation Report (OER)) for the period 11 March 2006 through 26 February 2007 shows she worked as a Medical Service Corps (MSC) officer prior to her appointment date. 4. The applicant provides: * her OER for the period 11 March 2006 through 26 February 2007 * Orders 050-174, issued by the Georgia Army National Guard (GAARNG), dated 19 February 2009 * ABCMR letter, dated 11 June 2009 * two ABCMR letters, both dated 1 September 2009 * a two-page email from the OTCS, NGB, dated 7 December 2009 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 Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090009933, on 27 August 2009. 2. The applicant's contentions are new arguments which will be considered by the Board. In addition, the evidence provided is new evidence which will be considered by the Board. 3. On 21 November 2005, a Federal Recognition Board (FRB) was held by the GAARNG to determine if the applicant was qualified to be awarded Federal recognition as a 2LT in the Quartermaster Corps (QMC). 4. On 10 March 2006, the applicant executed an NGB Form 337 (Oaths of Office) as a 2LT in the GAARNG and she was granted temporary Federal recognition. 5. The applicant's records show she graduated from an accelerated Officer Candidate School (OCS) course that was conducted at Fort McClellan, AL, from 14 January 2006 through 11 March 2006. 6. On 11 March 2006, the applicant was appointed as a 2LT in the GAARNG through OCS into the QMC. On that same date, she again executed an NGB Form 337 as a 2LT in the GAARNG and she was granted temporary Federal recognition. 7. On 21 September 2006, an FRB was held by the GAARNG to determine if the applicant was qualified to be awarded Federal recognition as a 2LT in the MSC. 8. On 21 September 2006, the applicant executed an NGB Form 337 as a 2LT in the GAARNG and she was granted Federal recognition. 9. On 21 September 2006, the NGB published Special Orders Number 242 AR extending the applicant Federal recognition for initial appointment as a QMC 2LT, effective 11 March 2006. 10. On 12 January 2007, a DA Form 5074-1-R (Record of Award of Entry Grade Credit [Health Services Officers]) was completed on the applicant. This document shows the applicant was awarded 3 months and 6 days of total prior service credit and entry grade based on her prior service in the ARNG QMC. As a result, the applicant's date of rank to 2LT in the MSC should have been adjusted to 15 June 2006. 11. The applicant provides an OER that shows she performed duties as a Health Service Material Officer, MSC, during the period 11 March 2006 through 26 February 2007. 12. On 29 March 2007, the NGB published Special Orders Number 75 AR extending the applicant Federal recognition for reappointment from the QMC to the MSC in the rank of 2LT, effective 21 September 2006, with a DOR of 15 June 2006. 13. On 17 June 2008, the NGB published Special Orders Number 151 AR extending the applicant Federal recognition for her promotion to 1LT in the GAARNG, effective 15 June 2008. 14. On 24 April 2009, the applicant was ordered to active duty in support of Operation Enduring Freedom for a period not to exceed 400 days. 15. On 8 June 2009, an advisory opinion was obtained from the Chief, Personnel Division, NGB. The advisory official recommended disapproval of the applicant's request that her appointment date and DOR in the MSC be adjusted to 10 March 2006. He stated that by regulation, before appointment to the MSC an OCS graduate must be boarded to determine his/her eligibility. He also stated that the applicant was boarded by an FRB in September 2006 at which time she was appointed in the MSC. Army Regulation 135-101 (Appointment of Reserve Commissioned Officers for Assignment to Army Medical Department Branches) states, in pertinent part, that an officer with prior commissioned service in a non-medical branch will get one half day of constructive credit for each day of prior commissioned service. Therefore, based on the applicant's prior 6 months and 10 days of commissioned service, she was entitled to 3 months and 5 days of constructive credit. Based on her constructive credit, her DOR was adjusted to 15 June 2006. 16. On 11 June 2009, a copy of the advisory opinion was forwarded to the applicant. However, due to the applicant's deployment and change in mailing address, she contends did not receive a copy of the advisory opinion. 17. The applicant provided an email, dated 7 December 2009 from Major (MAJ) T------ J. L--, a Medical Personnel Program Manager, at the OTCS, NGB. MAJ L-- advised the applicant to resubmit her packet because she was not given the opportunity to rebut the advisory opinion. MAJ L-- further stated that his office was not consulted on the advisory opinion submitted by the Chief, Personnel Division, NGB. 18. On 25 June 2010, an official from the Personnel Division, NGB, emailed the Board analyst a copy of an email, dated 1 June 2009. The email indicates that an official from the Personnel Division, NGB requested an advisory opinion review from the OTCS, NGB reference the applicant's adjustment in appointment date and DOR. Captain (CPT) M--- K. H-------- of the OTCS, NGB reviewed the advisory opinion and recommended that the applicant's appointment date and DOR stay as it was. CPT H-------- further stated that the applicant had to be boarded by USAREC [U.S. Army Recruiting Command] before being appointed in the MSC. 19. On 23 July 2010, the Board analyst contacted MAJ L-- of the OTCS, NGB. He was informed of CPT H--------'s review and recommendation. MAJ L-- indicated that he was not aware of the OTCS, NGB recommendation and at the time he advised the applicant he did not have all the facts in her case. MAJ L-- stated that he agreed with CPT H--------'s recommendation that the applicant had to be boarded by USAREC prior to her being MSC qualified. 20. On 23 July 2010, the Board analyst contacted the applicant by email. She was informed of MAJ L--'s decision and that he concurred with the 1 June 2009 recommendation. The applicant was provided a copy of the email recommendation from CPT H--------, dated 1 June 2009 and a copy of the conversation of record from MAJ L--, dated 23 July 2010. The applicant responded that she would seek advice from her Army Medical Department (AMEDD) recruiter and technician that assessed her in the GAARNG. The applicant was given the opportunity to respond to the newly provided documents; however, she did not respond. 21. National Guard Regulation 600-100 (Commissioned Officers - Federal Recognition and Related Personnel Actions) provides procedures for processing applications for Federal recognition. Paragraph 2-1 states commissioned officers of the ARNG are appointed by the 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. 22. National Guard Regulation 600-100, paragraph 2-2, states that the effective date of Federal recognition for original appointment is that date on which the commissioned officer executes the oaths of office in the State. 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. 23. Department of Defense Instruction (DODI) 6000.13, dated 30 June 1997, subject: Medical Manpower and Personnel, provides the policy on awarding constructive credit. Paragraph 6.1 states that a prospective heath profession officer’s entry grade and rank shall be determined by the number of years of entry-grade credit awarded on original appointment, designation, or assignment as a health professions officer. The entry-grade credit to be awarded shall equal the sum of constructive service credit and prior commissioned service credit except in cases when the totals exceed the maximum credit allowed. It further stipulates that a period of time shall be counted only once. 24. Army Regulation 135-101 (Appointment of Reserve Commissioned Officers for Assignment to Army Medical Department Branches), paragraph 1-8 states the Commanding General (CG), Reserve Components Personnel and Administration Center (RCPAC) (currently the U.S. Army Human Resources Command) or delegated, area commanders will tender appointment in the Reserve of the Army to an individual qualified. The CG, RCPAC, will issue active duty or active duty for training (ADT) orders or assign officers to a Reserve control group or Reserve unit. Before appointments are issued, the Commander, US Army Medical Department Personnel Support Agency (USAMEDDPERSA), acting for The Surgeon General, review applications for appointment without concurrent active duty for professional qualifications and recommend appointment or reappointment if, as determined by the appointment authority, other appointment criteria are met. Paragraph 1-10 states the authority for transfer of an ARNG officer to any AMEDD branches is National Guard Regulation 600-100, and transfer to any branch of the AMEDD would require a new appointment. 25. DODI 6000.13, paragraph 6.1.1 (Prior Commissioned Service Credit), provides guidance on prior commissioned service credit. It states that credit for prior service as a commissioned officer (other than commissioned warrant officer) shall be granted to recognize previous commissioned experience. It further states that the Secretaries shall establish procedures that ensure the awarding of prior commissioned service credit is applied in an equitable and consistent manner. 26. Paragraph 6.1.1.2 of the same DODI states that 1 half day of constructive service credit will be awarded for service on active duty or in an active status as a commissioned officer performed not in the corps or professional specialty in which being appointed in the case of individuals seeking an original appointment as a health professions officer. 27. Army Regulation 135-155 (Army National Guard and U.S. Army Reserve Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes policy and procedures used for selecting and promoting commissioned officers (other than commissioned warrant officers) of the Army National Guard of the United States and of commissioned and warrant officers (WO) of the U.S. Army Reserve. Table 2-1 establishes the time in grade requirement for officer promotions and it states that the minimum time in grade for promotion to 1LT is 2 years in the lower grade. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that she was not afforded the opportunity to submit a rebuttal to an advisory opinion. It is unfortunate that the applicant was not notified in a proper or timely manner of the advisory opinion and that she discovered the Board's decision to deny her case after she checked her IPERMS record. As a result, the staff of the Board worked diligently to ensure the applicant was kept abreast of the evidence obtained in the processing of her request for reconsideration. 2. The applicant contends that her initial appointment effective date and 2LT DOR should be adjusted to 10 March 2006 and that her 1LT DOR should be adjusted accordingly. However, there is insufficient evidence to support this claim. 3. An FRB determined the applicant was qualified for appointed as a 2LT in the QMC. She was initially appointed in the GAARNG as a QMC 2LT with an effective date of 11 March 2006. For whatever reasons, a board to determine her qualifications for appointment in the MSC was not held prior to her March 2006 initial appointment. In any case, the applicant did not have to accept appointment as a QMC officer. 4. Six months later, an FRB determined she was qualified for appointment as a 2LT in the MSC. The applicant was given 3 months and 5 days of prior service credit for her service in the QMC and she was reappointed on 21 September 2006 in the MSC with a DOR of 15 June 2006. When the applicant branch transferred from the QMC to the MSC, she was allowed to carry half of her credit as a QMC officer towards her DOR. Therefore, her reappointment date of 21 September 2006 and adjusted DOR of 15 June 2006 appear to be correct. 5. The applicant provided an email, dated 7 December 2009, from the OTCS, NGB. The email shows that a Medical Personnel Program Manager from the OTCS, NGB informed her that his office was not consulted on the advisory opinion to adjust her appointment date and DOR. However, after the official from the OTCS, NGB was informed by the Board analyst that his office had in fact recommended that the applicant's initial appointment and DOR in the MSC stay the same, the official indicated that after learning the facts of the case he concurred and recommended the applicant's initial appointment date and DOR should stay the same. Therefore, there is an insufficient evidentiary basis to support an adjustment to her appointment date and DOR. To grant relief in this case would not be appropriate. 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 to amend the decision of the ABCMR set forth in Docket Number AR2009009933, dated 27 August 2009. ____________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) AR20100007575 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20100007575 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1