RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: FEBRUARY 19, 2004
         DOCKET NUMBER: AR2003090370


         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Mr. Raymond J. Wagner		Chairperson
Mr. Robert Duecaster		Member
Mr. Melvin H. Meyer		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military records.

         Exhibit B - Military Personnel Records (including advisory opinion, if any).

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THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests, in effect, that his oath of office for acceptance of a United States Army Reserve (USAR) appointment be antedated to 1 March 2000 and that he receive promotion consideration by a special selection board to the rank of chief warrant officer four (CW4).

2. The applicant states, in effect, that he was twice non-selected for promotion to the rank of CW4 in the Regular Army and once notified that he would be involuntarily discharged, he completed a request for acceptance into the USAR for a period of 3 years. He goes on to state that he presumed that all of the necessary paperwork was completed because his orders were amended to reflect his assignment to the USAR Control Group (Reinforcement) and his report of separation (DD Form 214) was prepared to reflect his transfer to the USAR. He continues by stating that it was not until he transferred to a troop program unit (TPU) that he discovered that he was not in the USAR because an Oath of Office had never been executed. He executed an oath on 10 February 2003 and discovered that had the oath been properly executed on 1 March 2000, he would have been considered for promotion by the next scheduled board.

3. The applicant provides a copy of his DD Form 214, separation orders, a request for Reserve Component Assignment Orders, his oath of office, his promotion orders, and his discharge orders.

CONSIDERATION OF EVIDENCE:

1. The applicant's records, though very incomplete, show that he enlisted on 1 September 1982 and on 20 June 1985, was appointed as a USAR aviation warrant officer one (WO1), with a concurrent call to active duty. He was promoted to the rank of chief warrant officer two on 20 June 1987 and to the rank of chief warrant officer three (CW3) in the Regular Army on 1 July 1993.

2. On 22 November 1999, orders were published which directed that the applicant be discharged effective 1 March 2001, due to being twice non-selected for permanent promotion to the rank of chief warrant officer four (CW4). His orders authorized full separation pay and indicated that he must accept a 3-year assignment to either the USAR Control Group (Reinforcement), the USAR or the Army National Guard.

3. The applicant completed a Request for Reserve Component Assignment Orders (DA Form 5691-R) on 2 December 1999, requesting a 3-year assignment to the USAR Control Group (Reinforcement). The form was authenticated by the Reserve Component (RC) Career Counselor. Accordingly, his discharge orders were amended to reflect transfer to the USAR Control Group and his DD Form 214 was prepared to reflect transfer to that command as well.

4. The applicant was honorably discharged in the rank of CW3 on 1 March 2000, under the provisions of Army Regulation 600-8-24, paragraph 2-41, due to non-selection for permanent promotion. He had served 17 years, 6 months and 2 days of total active service and was paid $70,660.80 in involuntary separation pay benefits.

5. On 10 February 2003, the applicant executed an oath of office to accept an appointment as a Reserve Warrant Officer (CW3) and orders were published by the Total Army Reserve Personnel Command (ARPERSCOM) on 14 February 2003, assigning him to the USAR Control Group (Reinforcement) effective 10 February 2003, and directing an adjustment of his pay entry basic date and date of rank (DOR). On 28 February 2003, orders were published by the ARPERSCOM reassigning him to a USAR TPU effective 28 February 2003. The applicant is currently deployed to the Middle East Theater of Operations.

6. In the processing of this application an advisory opinion was provided by the Total Army Reserve Personnel Command (ARPERSCOM) which opined, in effect, that the applicant did not execute an oath of office until 10 February 2003 and therefore he had a break in service and was not eligible for promotion consideration until such time as he had been active for 1 year. The advisory opinion was provided to the applicant for comment and the applicant responded by email to the staff of the Board, to the effect that he was under the impression at the time of separation that he had done everything necessary to satisfy his transfer to the USAR; however, because personnel at his last duty station did not require him to execute an oath of office for a Reserve appointment, he was being unduly penalized with a break in service and being denied promotion consideration.

7. Department of the Army Circular 635-92-1 provides the criteria for separation pay and separation pay formulas. It provides, in pertinent part, that a condition precedent to receiving separation pay is that the individual must execute an agreement to serve in the Ready reserve for a period of at least 3 years. However, if it is determined that the individual is not qualified for appointment for enlistment in the Ready Reserve, they will be considered to have met the condition.

DISCUSSION AND CONCLUSIONS:

1. The available evidence in this case suggests that at the time the applicant was notified that he must serve in the USAR for a period of 3 years as a condition to receiving separation pay, the applicant sought out the RC Career Counselor for assistance in accomplishing the required actions.

2. In doing so, the applicant completed the paperwork that was provided to him and his orders as well as his DD Form 214 were prepared to reflect his assignment to the USAR Control Group (Reinforcement). Accordingly, he received his separation pay at the time of his discharge.

3. The applicant did not become aware that he was not in the USAR until such time as he attempted to join a USAR TPU and was informed that an oath of office was required to accept an appointment in the USAR. Accordingly, he was administered an oath of office on 10 February 2003, was assigned to the USAR Control Group (Reinforcement) and was subsequently reassigned to a TPU.

4. As a result of the delay in administering the oath to the applicant, he has incurred a break in service, an adjustment to his DOR and has been denied promotion consideration that he otherwise would have received had he been properly administered an oath on 1 March 2000, when he was discharged from the Regular Army.

5. It is also apparent due to the lack of documentation in his OMPF, that the documents completed by the applicant at the time of separation that relate to his acceptance of a 3-year obligation in the USAR were not properly forwarded to the appropriate command.

6. It is further apparent that at the time he was discharged, officials were satisfied that he had properly accomplished the necessary documents regarding his USAR obligations to qualify for payment of his separation pay.

7. The evidence suggests that it was reasonable for the applicant to presume that he had been properly advised and had completed all of the necessary paperwork/documents necessary to complete his appointment in the USAR, when his orders were amended, his DD 214 was completed to reflect such transfer and he was paid his separation pay.

8. Therefore, based on the available evidence in this case, it would be in the interest of justice to correct the applicant's records by allowing him to execute an antedated oath of office dated 1 March 2000 to replace the subsequent oath of office dated 10 February 2003.




9. As a result of the applicant being allowed to submit an antedated oath of office, his DOR and PEBD should be adjusted to show that there is no break in service and he should receive promotion consideration by all selection boards that he would have been eligible to have been considered by, had the error not occurred.

BOARD VOTE:

rjw______ mm_____ rd______ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by allowing the applicant to execute an antedated oath of office for a USAR appointment as a CW3, dated 1 March 2000, that his DOR and PEBD be adjusted to show no break in service and that he receive promotion reconsideration for all selection boards that he otherwise would have been eligible for had the error not occurred.





                  ____Raymond J. Wagner____
                  CHAIRPERSON

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INDEX

CASE ID	AR2003090370
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20040219
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	(GRANT)
REVIEW AUTHORITY
ISSUES 1. 131.0100	311/ssb
2.
3.
4.
5.
6.