IN THE CASE OF:	

		BOARD DATE:	1 September 2009  

		DOCKET NUMBER:  AR20090002470 


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 elimination of the break in service from 2 September 2005 to 1 March 2006 and correction of his date of rank to 7 June 2005, the date the promotion board results were released.

2.  The applicant states an administrative processing error resulted in a break in service from 2 September 2005 to 1 March 2006 and change of his date of rank to 2 March 2006.

3.  The applicant provides copies of page 10 of the Fiscal Year 2005 (FY05) promotion list for major and the forwarding U.S. Army Human Resources Command (HRC) memorandum, dated 7 June 2005; HRC Orders R-08-578240, dated 18 August 2005, ordering him to active duty as a captain in the U.S. Army Reserve (USAR) Control Group (Active Guard Reserve (AGR)) with a reporting date of 1 September 2005; HRC Orders R-08-578240A01, dated 18 August 2005, amending his reporting date to 2 September 2005; DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 1 September 2005; DA Form 71 (Oath of Office - Military Personnel) for appointment as a Reserve commissioned officer in the grade of major, dated 2 September 2005; HRC Orders B-09-505825, dated 8 September 2005; HRC Orders R-08-578240A02, dated 8 September 2005, amending his rank to major; HRC appointment memorandum, dated 1 March 2006; HRC letter, dated 10 April 2006; and DA Form 71, dated 2 March 2006, in support of his application.


CONSIDERATION OF EVIDENCE:

1.  The applicant, a Regular Army captain with over 16 years of active duty commissioned service, was selected for promotion by the FY05 selection board and listed on the promotion list released on 7 June 2005.

2.  HRC Orders R-08-578240, dated 18 August 2005, ordered the applicant to active duty on 1 September 2005 for a 3-year period.  The orders identify him as a captain in the USAR Control Group (AGR).  He was to report to Headquarters and Headquarters Company (HHC), 166th Area Support Group, Fort Buchanan, Puerto Rico.

3.  HRC Orders R-08-578240A01, dated 18 August 2005, amended his report date to 2 September 2005.

4.  On 19 August 2005, the applicant (prematurely) executed an oath of office as a Reserve commissioned officer in the grade of captain (pay grade O-3) by completing and having witnessed a DA Form 71.  The July 1999 version of the form was used.

5.  On 1 September 2005, the applicant was discharged from the Regular Army with an honorable discharge with 16 years, 2 months, and 16 days of commissioned service; 1 year, 1 month, and 2 days of prior active duty service; and 1 year and 14 days of prior inactive duty service.  The separation code indicates an unqualified resignation.  Block 9 of the DD Form 214 shows he was transferred to HHC, Army Support Group (Combat Support), Fort Buchanan, Puerto Rico.

6.  On 2 September 2005, the applicant executed an oath of office as a Reserve commissioned officer in the grade of major by completing and having witnessed a DA Form 71.  The July 1999 version of the form was used.

7.  HRC Orders R-08-578240A02, dated 8 September 2005, amended his AGR orders to show his rank as major.

8.  HRC Orders R-09-5055825, dated 8 September 2005, established the applicant's date of rank for major as 2 September 2005.

9.  A 1 March 2006 memorandum from HRC appointed the applicant as a USAR major.  He was invited to sign and return the enclosed oath of office or forward a statement declining the appointment.  The final paragraph reads, "You are being reappointed Highest Grade Held.  Defacto appointment date is 2 September 2005, DOR [date of rank] and PEBD [pay entry basic date] to be adjusted to permanent Reserve appointment date of 2 March 2006.  Period of break in service is 2 September 2005 to 1 March 2006."

10.  On 2 March 2006, the applicant again executed an oath of office as a Reserve commissioned officer in the grade of major by completing and having witnessed a DA Form 71.  The July 1999 version of the form was used.

11.  A 10 April 2006 letter from the HRC Appointments Branch Chief informed the applicant that he needed to submit a properly executed oath of office by 14 April 2006.  He was informed that he held no military status because "the DA Form 71 you have been submitting does not comply with Executive Order 13358 dated 30 September 2004."

12.  During the processing of this case an advisory opinion was obtained from Department of the Army Promotions, HRC.  The Chief, Special Actions Branch, opined that the applicant's date of rank could not be corrected to 7 June 2005 because the applicant did not meet the requirements to be on the Reserve Active Status List (RASL) and assigned to a higher level position until 2 September 2005.

13.  The advisory opinion was forwarded to the applicant.  There is no available evidence that he responded.

14.  Executive Order 13358, dated 28 September 2004, addresses specific provisions of Title 10, U.S. Code.  Section 1(c) of the order addresses the provision of law that allows the Secretary of the department concerned to appoint any Regular officer as a Reserve officer.

15.  Title 10, U.S. Code, section 14317c, provides that an officer who is on the active duty list and is on a promotion list and who, before being promoted, is removed from the active duty list and placed on the RASL of the same Armed Force and in the same completive category shall be placed on an appropriate promotion list.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states an administrative processing error resulted in a break in service from 2 September 2005 to 1 March 2006 and changed his date of rank to 2 March 2006.

2.  The applicant was selected for promotion to major while on active duty as a Regular Army commissioned officer and his name was placed on the promotion list released 5 March 2005.
3.  He prematurely accepted a Reserve appointment while still a Regular Army commissioned officer and was then discharged from active duty as a captain.  The following day, 2 September 2005, he commenced active duty as a Reserve commissioned officer in the AGR program assigned to a major's position.  He properly completed an oath of office as a Reserve commissioned officer on this date.

4.  The decision to award the applicant defacto status from his entry onto active duty in the AGR program on 2 September 2005 until 6 March 2006 because he allegedly had a break in service until 6 March 2006 is unjust.  The applicant was eligible to be promoted to major upon his assumption of duties in a major's position.  He met this requirement on 2 September 2005.  Furthermore, he executed an oath of office on that date.

5.  To penalize him because "the DA Form 71 you have been submitting does not comply with Executive Order 13358" is especially unjust.   Surely the applicant did not furnish the DA Forms 71 himself.  Rather, he undoubtedly used those proffered by HRC or other authorized officials who should have known which form to use.  Additionally, Executive Order 13358, dated 28 September 2004, does not say anything about the form or format for an oath of office.  Finally, the same 1999 version of the DA Form 71 was used on each of the four separate occasions the applicant executed an oath of office as a Reserve commissioned officer.

6.  It is in the interest of justice to correct his record to show that the applicant was appointed without a break in service as a Reserve major with an effective date and a date of rank of 2 September 2005.

7.  He was not eligible for promotion as a Reserve commissioned officer until he was assigned to a major's position.  Therefore, correction of his date of rank to 7 June 2005 is not warranted.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x____  ____x____  ___x_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  showing that he was discharged from the Regular Army effective 1 September 2005 and he was appointed as a Reserve major on active duty in the AGR program effective 2 September 2005 with no break in service; and

	b.  correcting his effective date and date of rank as a major to 2 September 2005.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to correcting his date of rank as a major to 7 June 2005.



      ____________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)                                         AR20090002470



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ABCMR Record of Proceedings (cont)                                         AR20090002470



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