RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  8 January 2008 
	DOCKET NUMBER:  AR20070002910 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Rial D. Coleman

Analyst


The following members, a quorum, were present:


Mr. Frank C. Jones, II

Chairperson

Ms. LaVerne M. Douglas

Member

Mr. Michael J. 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, in effect, that her records be corrected to show all of her time served in the Active Guard/Reserve (AGR) as service creditable toward retirement.

2.  The applicant states that she was assigned to the Active Guard/Reserve one day after she was discharged from active duty with the Regular Army.  She continues that the law pertaining to Reserve officer appointments changed on the date she was assigned to the Active Guard/Reserve.  The applicant contends that due to no fault of her own, her United States Army Reserve (USAR) appointment was not approved by the Secretary of Defense until seventeen months after she began serving in the Active Guard/Reserve.

3.  The applicant provides copies of her, DA Form 5646-R (Statement of Conditions of Service - Active Guard Reserve), Reserve Appointment Orders, DA Form 71 (Oath of Office - Military Personnel), and a one page self-authored statement in support of this request.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show she was commissioned as a second lieutenant in Chemical basic branch.  Subsequently, she transferred to the Military Intelligence branch.  The applicant was honorably discharged from the Regular Army and transferred to 6025th United States Army Garrison (Support) located in St. Louis, Missouri on 30 June 2005.  The highest rank and pay grade the applicant attained prior to discharge was captain/O-3.

2.  DA Form 5646-R, dated 27 September 2004, shows the applicant applied for voluntary order to active duty in an Active Guard/Reserve (AGR) status for an initial AGR tour.

3.  United States Army Human Resources Command (St. Louis) Orders Number R-03-573299, dated 23 March 2005, ordered the applicant to active duty in Active Guard/Reserve status as a captain for a period of 3 years.  The order assigned the applicant to Headquarters and Headquarters Company, United States Army Human Resources Command (St. Louis) with a reporting date of 1 July 2005.

4.  DA Form 71, dated 19 April 2005, shows the applicant executed an oath of office as a Reserve commissioned officer in the grade of captain.


5.  United States Army Intelligence Center and Fort Huachuca Orders Number 110-0109, dated 20 April 2005, amended the applicant's previously issued discharge orders to show assignment to 6025th United States Army Garrison (Support) located in St. Louis, Missouri.

6.  DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 
30 June 2005, shows the applicant was honorably discharged from the Regular Army and transferred to 6025th United States Army Garrison (Support) located in St. Louis, Missouri.

7.  United States Army Human Resources Command (St. Louis) Orders Number R-B-06-604533, dated 29 June 2006, promoted the applicant to the grade of rank of major in the United States Army Reserve Active Guard/Reserve control group with an effective date and date of rank of 7 June 2006.

8.  DA Form 67-9 (Officer Evaluation Report), dated 15 August 2006, covering the period of 1 July 2005 through 30 June 2006, shows the applicant's rank as major with a date of rank of 7 June 2006.  This form also shows the applicant performed her assigned duties in an outstanding manner.

9.  DA Form 1506 (Statement of Service - for Computation of Length of Service for Pay Purposes), authenticated on 28 August 2006 shows the applicant's active duty service in the United States Army Reserve Active Guard/Reserve from 2 July 2005 to 28 August 2006 as creditable service toward retirement.

10.  United States Army Human Resources Command (St. Louis) memorandum, dated 22 November 2006, informed the applicant that by the direction of the President, she was appointed as a Reserve commissioned officer of the Army, effective on her acceptance.  The memorandum instructed the applicant to execute an oath of office to indicate her acceptance of the appointment and to facilitate the issuance of a commission (DD Form 1A) to her.  The memorandum also informed the applicant that her defacto appointment date was 1 July 2005 and that her date of rank (DOR) and pay entry base date (PEBD) were to be adjusted to her permanent Reserve appointment date of 22 November 2006.  The memorandum concluded by informing the applicant that the period of 1 July 2005 to 21 November 2006 was considered a break in service.  A handwritten entry on the bottom of the memorandum shows the applicant's date of acceptance as 16 February 2007 with an effective date of 22 November 2006.

11.  DA Form 71, dated 16 February 2007, shows the applicant executed an oath of office as a Reserve commissioned officer in the grade of major.

12.  United States Army Human Resources Command (St. Louis) Orders Number C-02-705719, dated 21 February 2007, assigned the applicant to United States Army Reserve Control Group (Reinforcement) with an effective date, date of rank, and pay entry base date of 22 November 2006.

13.  On 23 March 2007, in the processing of this case, an Army Board for Correction of Military Records (ABCMR) analyst requested an advisory opinion on this case from the United States Army Human Resources Command (St. Louis).

14.  A staff member of United States Army Human Resources Command (St. Louis) rendered an advisory opinion, dated 23 April 2007.  The staff member cited Executive Order Number 13358 (Assignment of Functions Relating to Certain Appointments, Promotions, and Commissions in the Armed Forces), dated 30 September 2004 which elevated the authority for appointing officers in the United States Army Reserve to the Secretary of Defense.  The staff member continued that as of 
1 July 2005, all officers appointed into the United States Army Reserve must be on a "scroll" approved and signed by the Secretary of Defense before an oath of office can be initiated.  The staff member also noted that for years, all services were rendering appointments in their Reserves at a much lower level, but the aforementioned Executive Order clarified that delegation should always have been from the President to Secretary of Defense only.  The staff member acknowledged the fact that the applicant complied with Active Guard/Reserve Orders and had reason to assume she had a valid United States Army Reserve appointment.  In conclusion, the staff member noted that his agency did not have authority to circumvent the Executive Order and stated corrective action could only take place at the direction of the Army Board for Correction of Military Records.  A copy of this advisory opinion was provided to the applicant in order to allow her an opportunity to submit comment or rebuttal.

15.  DA Form 67-9 (Officer Evaluation Report), dated 24 May 2007, covering the period of 1 July 2006 through 16 March 2007 shows the applicant's rank as major with a date of rank of 22 November 2006.  This form also shows the applicant performed her assigned duties in an outstanding manner.

16.  In a written rebuttal to the advisory opinion rendered by United States Army Human Resources Command (St. Louis), dated 20 July 2007 the applicant contends that she fully believed she possessed a valid Reserve appointment.  The applicant continues that she served in good faith, risked the possibility of deployment, met all training requirements, and executed all the duties and responsibilities of a field grade officer.  The applicant concluded that the facts she continued to receive pay, was promoted to major, and received a DA Form 1506 showing that her time was creditable toward retirement were all indications that she possessed a valid United States Army Reserve appointment.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the delay in approval of her Reserve appointment was due to no fault of her own and that all of her time served on active duty in an Active Guard/Reserve (AGR) status should be creditable toward retirement was carefully considered and found to be with merit.

2.  Based upon guidance from personnel specialists, the applicant fulfilled all established administrative procedures to request discharge from active duty in the Regular Army and transfer to the United States Army Reserve Active Guard/Reserve.

3.  United States Army Human Resources Command (St. Louis) Orders ordered the applicant to active duty in Active Guard/Reserve status as a captain for a period of 
3 years with a reporting date of 1 July 2005.  In preparation for this assignment applicant executed an oath of office as a Reserve commissioned officer in the grade of captain.

4.  United States Army Intelligence Center and Fort Huachuca Orders amended the applicant's previously issued discharge orders to show assignment to 6025th United States Army Garrison (Support) located in St. Louis, Missouri.

5.  The applicant's DD Form 214 shows she was honorably discharged from the Regular Army and transferred to 6025th United States Army Garrison (Support) located in St. Louis, Missouri.

6.  United States Army Human Resources Command (St. Louis) Orders promoted the applicant to the grade of rank of major in the United States Army Reserve Active Guard/Reserve control group with an effective date and date of rank of 7 June 2006.

7.  Two DA Forms 67-9 show the applicant performed her assigned duties in an outstanding manner.

8.  A DA Form 1506 authenticated by the Chief of the Essential Service Branch of United States Army Human Resources Command (St. Louis) shows the applicant's active duty service in the United States Army Reserve Active Guard/Reserve from 
2 July 2005 to 28 August 2006 as creditable service toward retirement.

9.  The advisory opinion from United States Army Human Resources Command (St. Louis), in effect, acknowledges the fact that the applicant complied with Active Guard/Reserve Orders and had reason to assume she had a valid United States Army Reserve appointment.  However, the staff member also noted that his agency did not have authority to take corrective action unless directed to do so by the Army Board for Correction of Military Records.

10.  Based on the foregoing, it is in the interest of equity to correct the applicant's pay entry base date and date of appointment as a commissioned officer in the United States Army Reserve to 1 July 2005, when she first began serving on active duty in the Active Guard/Reserve.  Accordingly, the applicant's effective date of promotion and date of rank to the grade of major in the United States Army Reserve Active Guard/Reserve control group should also be corrected to the original date of 7 June 2006.

BOARD VOTE:

__FCJ____  _MJF __  _LMD___  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 her pay entry base date and date of appointment as a commissioned officer in the United States Army Reserve as 1 July 2005; and her effective date of promotion and date of rank to the grade of major in the United States Army Reserve Active Guard/Reserve control group as 7 June 2006.





    Frank C. Jones, II__
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

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

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.