RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        14 DECEMBER 2006
      DOCKET NUMBER:  AR20060003318


      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             |
|     |Ms. Rene’ R. Parker               |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. John Slone                    |     |Chairperson          |
|     |Mr. Lester Echols                 |     |Member               |
|     |Mr. Michael Flynn                 |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

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

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his date of appointment in the United
States Army Reserve (USAR) be changed to 1 December 2005.

2.  The applicant states, in effect, that he received and complied with
orders number R-09-579006 that ordered him to active duty.  He argues that
since he was in a "de facto" status from 1 December 2005 to 3 February
2006, he should be granted all rights and privileges of an officer that had
been approved by the Secretary of Defense.

3.  The applicant provides orders, appointment memorandum, and DA Form 71
(Oath of Office).

CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show he was appointed as a Reserve Commissioned
Officer in the grade of second lieutenant, effective 14 May 1994.  The
applicant was honorably discharged in the grade of captain on 30 September
2005.

2.  Orders R-09-579006, dated 13 September 2005, ordered the applicant to
active duty in an Active Guard/Reserve (AGR) status as an Army Medical
Department (AMEDD) Recruiting Officer for a period of three years, with a
reporting date of 24 October 2005.  This date was later amended by orders
R-09-579006A01, dated 16 September 2005, which changed his report date to
1 December 2005.

3.  A Memorandum dated 3 February 2006 shows that the applicant was
appointed as a Reserve Commissioned Officer in primary specialty skill
identifier 67E (Pharmacy), Medical Service Corps.  The appointment was
approved by the Secretary of Defense on 2 February 2006.  Additionally, the
memorandum stated that the applicant was being appointed in the highest
grade held.  The de facto appointment date was listed as 1 December 2005,
with a date of rank and pay entry basic date of 3 February 2006.  The
memorandum shows the applicant’s period of break in service as 1 October
2005 to 2 February 2006.

4.  In an advisory opinion, dated 7 June 2006, the Chief, Reserve
Appointments, Human Resources Command, St. Louis, stated that in Executive
Order 13358, the Secretary of Defense was delegated authority, by the
President, to appoint officers in the USAR with no further sub-delegation
authorized.  As of 1 July 2005, all officers appointed into the USAR must
be on a "scroll" approved and signed by the Secretary of Defense before an
Oath of Office can be initiated.  The Chief, Reserve Appointments,
explained that the applicant was placed on AGR duty after being discharged
from active duty effective 30 September 2005.  The applicant was not
informed by the AGR branch that he needed to be appointed into the USAR
before starting his AGR duty.  The Secretary of Defense approval for USAR
appointment of the applicant was not received until
2 February 2006.  Subsequently, the branch issued a USAR appointment
effective 3 February 2006.  At the same time, a "de facto" appointment was
noted on the USAR appointment letter to allow the applicant to retain all
pay and allowances received back to 1 December 2005.

5.  The Chief, Reserve Appointments, concluded that the applicant complied
with AGR orders and assumed he had a valid USAR appointment; however, the
Reserve Appointments Branch cannot circumvent the Executive Order.
Therefore, no administrative correction can be made to the applicant’s
appointment.

6.  The advisory opinion was forwarded to the applicant for acknowledgement
and/or rebuttal on 9 August 2006.  However, no response was received.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is entitled to
correction to his records to show he was appointed in the USAR, Medical
Service Corps, as a captain, effective 1 December 2005.

2.  The applicant was not officially appointed in the USAR until 3 February
2006, even though he began serving in an active Reserve status on 1
December 2005. Due to circumstances beyond the applicant's control, written
approval and inclusion on a scroll signed and approved by the Secretary of
Defense was not received until approximately 2 months after he entered into
the USAR AGR Program.

3.  Notwithstanding the advisory opinion rendered by the Chief, Reserve
Appointments, the administrative error in the processing of the applicant’s
appointment resulted in his appointment being delayed for 2 months after he
entered active duty.  This caused the applicant to be penalized for an
action that was beyond his control.  Therefore, in the interest of equity
and justice, it would be appropriate to correct his appointment date to 1
December 2005.




BOARD VOTE:

___JS___  ___LE __  ___MF __  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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
showing his effective date of appointment in the USAR and date of rank as a
captain as 1 December 2005.




                                  ______ John Slone________
                                            CHAIRPERSON




































                                    INDEX

|CASE ID                 |AR20060003318                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20061214                                |
|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.       |102.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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