IN THE CASE OF: BOARD DATE: 27 January 2009 DOCKET NUMBER: AR20080019240 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, in effect, adjustment to his appointment date as a second lieutenant to 3 August 2007. 2. The applicant states, in effect, upon his graduation from Officer Candidate School (OCS), his company commander failed to properly submit his name to the appropriate agency for addition to the appointment scroll. 3. The applicant provides a copy of his Reserve appointment memorandum, dated 27 March 2008; a copy of a DA Form 71 (Oath of Office - Military Personnel); a copy of Orders Number C-04-806102, from the United States Army Human Resources Command, St. Louis (HRC-STL), Missouri, a copy of a Certificate of Completion; a copy of his appointment certificate, and a copy of the advisory opinion from the HRC-STL in support of this application. CONSIDERATION OF EVIDENCE: 1. The applicant's military records show he graduated from OCS and executed an Oath of Office on 3 August 2007. 2. The applicant was issued an appointment memorandum, dated 27 March 2008, indicating his appointment in the U.S. Army Reserve (USAR) as a second lieutenant. This memorandum shows that the applicant's appointment was approved by the Secretary of Defense on 27 March 2008. The memorandum also states that the applicant's defacto appointment date was 3 August 2007. 3. In an advisory opinion, dated 10 July 2008, the Chief, Reserve Appointments, HRC, St. Louis, Missouri, stated that per Executive Order 13358, Assignment of Functions Relating to Certain Appointments, Promotions, and Commissions in the Armed Forces, dated 30 September 1994, the White House had delegated authority to the President to appoint officers in the USAR to the Secretary of Defense with no further sub-delegation authorized. For years, all services were doing appointments in their Reserves at a much lower level. In that executive order, the Department of Justice made it clear that delegation of authority should always have been from the President to the Secretary of Defense only. As of 1 July 2005, all officers appointed in the USAR must be on a "scroll" signed by the Secretary of Defense before an Oath of Office can be initiated. 4. The HRC-STL official stated that based on the information shown on the Soldier Management System (SMS) database, the applicant was a National Guard OCS graduate and executed an Oath of Office on 3 August 2007. On 2 April 2008, SMS entries indicated that neither the HRC-STL lieutenants branch nor the Reserve appointments branch felt they had authority to appoint a National Guard OCS graduate. It was stated that if the individual wanted a USAR appointment, he would have to submit a direct appointment application packet. The HRC-STL official further stated that the case was relooked by their Reserve appointments branch on 10 April 2008 and it was decided by the undersigned that a defacto appointment could be issued. The applicant's name was placed on the scroll which was approved on 27 March 2008. Since the Oath of Office could not be issued prior to 27 March 2008, the applicant was issued a defacto appointment with a date of 3 August 2007 and an effective date of 27 March 2008. 5. In conclusion, the HRC-STL official stated that the Reserve Appointments Branch does not have authority to circumvent the referenced executive order. 6. On 17 August 2008, the applicant concurred with the advisory opinion. DISCUSSION AND CONCLUSIONS: 1. The applicant's contention that his effective date of appointment should be amended to 3 August 2007 was carefully considered and determined to be without merit. 2. Although, the Secretary of Defense approved the applicant's appointment as a second lieutenant and provided him with a defacto appointment date for promotion purposes, the effective date of promotion cannot be prior to approval of the scroll by the Secretary of Defense. In this case, the earliest effective date for appointment is 27 March 2008. As a result, the applicant's records are correct as currently constituted. 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) AR20080019240 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20080019240 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1