RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  19 APRIL 2007
	DOCKET NUMBER:  AR20060010641 


	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. Gerard W. Schwartz

Acting Director

Ms. Rene’ R. Parker 

Analyst


The following members, a quorum, were present:


Mr. John Slone

Chairperson

Mr. David Haasenritter

Member

Mr. John Heck

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, in effect, that his appointment date as a Reserve Commissioned Officer be changed from 9 November 2004 to 5 February 2004. 

2.  The applicant states that he received a direct appointment to second lieutenant on 5 February 2004 after receipt of an appointment letter from the Human Resources Command (HRC), St. Louis.  Once the DA Form 71 (Oath of Office) was signed, the applicant states that he was commissioned and moved to an officer position within the organization.  He admits that upon completion of his tour, he received an Officer Evaluation Report, and two DD Form 214 (Certificate of Release or Discharge from Active Duty).  

3.  The applicant states that he was unable to schedule Engineer Officer Basic Course because HRC had him listed as a staff sergeant.  He maintains that he provided HRC with copies of his DA Form 71 and appointment letter.  He also maintains that his executive officer had him complete another DA Form 71 to expedite the school attendance process.  The applicant states that he attended and graduated from the Engineer Basic Officer Course on 26 May 2005.   

4.  The applicant provides several orders, DA Form 71, application for appointment, memorandum of appointment, supporting statements, DD Forms 214, DA Form 1059 (Service School Academic Evaluation), OER, Noncommissioned Officer Evaluation Reports (NCOERs), Resume of Service Career, and a photograph.

CONSIDERATION OF EVIDENCE:

1.  Records available to the Board show that the applicant enlisted in the United States Army Reserve (USAR) on 15 October 1996.  The applicant remained in the USAR and was promoted to rank of staff sergeant on 5 December 2001.

2.  Orders A-10-301310 dated 3 October 2003 ordered the applicant to active duty with a report date of 26 October 2003.  The order stated that the applicant's duty was to be performed at Soto Camo, Honduras, for a period of 179 days ending on 21 April 2004.  This order was amended on two separate occasions, 18 March 2004 and 26 August 2004, changing his rank from staff sergeant to second lieutenant, and the period of active duty from 179 to 269 days ending on 20 July 2004.  The later order further amended his period of active duty from 269 to 307 days with an ending date of 27 August 2004.

3.  The applicant’s NCOER from the period October 2002 to August 2003 shows that he was rated for 11 months as a staff sergeant prior to his deployment to Honduras.  The NCOER from September 2003 to January 2004 show he was rated for 3 months while deployed to Honduras as a Quality Assurance Noncommissioned Officer.  

4.  Memorandum, subject:  Application for US Army Reserve Appointment, dated 12 January 2004, pertaining to the applicant shows that HRC St Louis sent this memorandum to the applicant’s commander explaining that if the applicant was unable to accept the appointment within the prescribed 90 days, due to being on mobilization orders, he must submit a request for extension, in writing, to HRC.  The memorandum stated "This appointment may not be accepted while mobilized."

5.  The applicant provided two memorandums pertaining to his appointment, dated 12 January 2004 from HRC St Louis.  Both memorandums stated that the applicant was appointed as a Reserve commissioned officer in the grade of second lieutenant effective on the date of acceptance.  The date of acceptance on one of the memorandums was listed as 5 February 2004 and 9 November 2004 on the other one.  Additionally, the applicant provided two DA Forms 71 that show he executed the oath of office on 5 February 2004, as well as 
9 November 2004.

6.  The applicant provided an OER from the period 5 February 2004 to 15 July 2004 which shows that he was rated as second lieutenant.

7.  He also provided a copy of two DD Forms 214 that were issued during his deployment in Honduras.  The DD Form 214 for the period of 26 October 2003 to 4 February 2004 shows his rank as a staff sergeant.  The DD form 214 for the period 5 February 2004 to 27 August 2004 shows his rank as a second lieutenant.

8.  Orders C-11-425600, dated 10 November 2004, reassigned the applicant in the Reserve effective 9 November 2004 due to an "appointment" as a second lieutenant.

9.  The DA Form 1059 shows that the applicant successfully completed the Engineer Officer Basic Course from the period 23 January 2005 to 26 May 2005.




10.  The applicant provided a supporting statement from a senior officer that attests to the applicant’s outstanding characteristics.  The senior officer stated that the applicant should be given credit for the time he served as an officer in Honduras and not penalized due to an administrative error.  He concluded "Let's take care of this Soldier who’s fighting on the front lines." 

11.  A memorandum from the adjutant, Afghanistan Engineer District, Kabul Afghanistan, addressed to HRC St. Louis, dated 15 July 2006, explained why the applicant should keep his original oath of office date of 5 February 2004.  The adjutant said that while deployed in Honduras the applicant received notification of his direct appointment.  He took the oath of office to become a commissioned officer and continued his deployment as a second lieutenant.  HRC St Louis initially recognized the oath, but when the applicant applied for Engineer Officer Basic Course, HRC required him to retake a commissioning oath.  The adjutant continues by provided timeline of "actions" that occurred in an effort to show that HRC St. Louis validated the applicant’s first oath of office.  The adjutant supports this claim by admitting that the applicant’s position number and rank were changed to show that he was in an officer position and his rank listed on the orders was second lieutenant. 

12.  Information obtained from the Soldier’s Management System (SMS) shows that HRC St Louis sent an appointment memorandum and oath of office to the applicants command.  The completed documents were received by HRC on
27 February 2004.  The analyst attempted to cut orders, but the database showed that mobilization orders existed on the applicant.  On 4 March 2004 the applicant was contacted and it was determined that he was on Temporary Tour of Active Duty (TTAD) orders.  The applicant was told that he was not to accept appointment while on active duty orders and he needed to be released from active duty prior to accepting appointment.  On 19 March 2004, an amendment to the applicant’s TTAD orders was received that amended his rank and extended him on active duty.  The command was informed that the applicant had to be discharged prior to accepting appointment.  On 9 November 2004 the applicant was administered a new oath and subsequently his discharge orders were completed. 

13.  In the processing of this case, an advisory opinion was obtained from the Chief, Reserve Appointments, HRC St. Louis.  The Chief, Reserve Appointments recommended disapproval of the applicant’s request.  The recommendation was based on information obtained from the office backup and comments made in the SMS tracking database.  The Chief, Reserve Appointments concluded that an offer of USAR appointment is not the official tendering of such an appointment.  It appears that the applicant and his command chose to acknowledge the offering of USAR appointment as official authorization without proper subsequent procedures being followed and the required set of orders which tenders/effects the appointment. 

14.  Personal Policy Guidance, paragraph 14-4 provides guidelines on direct commissioning of Reserve Component Soldiers and accepting appointment during mobilization.  The policy states, in pertinent part, that a Reserve Component Soldier notified of acceptance for direct appointment during his or her mobilization period will complete the mobilization period and be afforded 90 days following the Soldier’s release from active duty date to notify St Louis and complete the required actions for appointment.

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows that the applicant and his command were informed as early as 12 January 2004 that the applicant’s appointment "may not be accepted while mobilized."  This information was again relayed to the applicant on 4 March 2004 by the HRC analyst and he was told not to accept the appointment while on active duty orders.  

2.  The fact that the command and the applicant, without official authorization, took it on themselves to appoint the applicant as second lieutenant and assign him to a position based on his new rank, is not justification to change his appointment date.  

3.  In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___JS___  __DH ___  __JH____  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.





_______John Slone_________
          CHAIRPERSON




INDEX

CASE ID
AR20060010641
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070419
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
102.00
2.

3.

4.

5.

6.