IN THE CASE OF:	  

		BOARD DATE:	       23 JULY 2009

		DOCKET NUMBER:  AR20090004079 


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 reconsideration of the Army Board for Correction of Military Records (ABCMR) denial of his request to adjust his date of rank (DOR) as a major from 22 December 2005 to 24 July 2003.

2.  The applicant states there was a binding contract between himself and the U.S. Army based on his letter of appointment, dated 18 June 2003, and his oath of office, dated 24 July 2003.  He states there was no "subsequent memorandum" after his oath of office on 24 July 2003.  He states that when the Secretary of the Army approved his waiver request for appointment on 30 March 2005, he in effect ratified his oath of office taken on 24 July 2003.  He states this ratification binds the Army to his previous oath of office that was flawed.

3.  The applicant provides, in support of his application, his letter of appointment, dated 18 June 2003; and his DA Form 71 (Oath of Office - Military Personnel).

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080019029, on 13 January 2009.

2.  The applicant submitted his letter of appointment as a major in the U.S. Army Reserve (USAR), dated 18 June 2003, from the U.S. Total Army Personnel Command (now known as the Human Resources Command [HRC]).  This document is new evidence which requires that his case be reconsidered by the ABCMR.  

3.  Upon graduation from the U.S. Military Academy at West Point, New York, the applicant was commissioned a second lieutenant in the USAR, effective 9 June 1979.  He was ordered to active duty and completed the Infantry Officer Basic course.  He was appointed a captain in the Regular Army Judge Advocate General's (JAG) Corps on 14 April 1988.  He was promoted to major on 
1 February 1991.  

4.  On 12 October 1993, the applicant was discharged by reason of the expiration of his term of service.  He had completed 14 years, 4 months, and 7 days of active service that was characterized as honorable.  On 13 October 1993 the applicant was commissioned a major in the USAR JAG Corps.  He was twice non-selected for promotion in 1997 and 1998 due to not meeting educational requirements.  He was discharged from the USAR effective 9 August 1999.

5.  On 29 May 2002, the applicant applied for a commission in the USAR JAG Corps.

6.  On 18 June 2003, the applicant was issued a letter of appointment as a major in the USAR JAG Corps.  He accepted this appointment and took the oath of office on 24 July 2003.

7.  According to a time line of events provided by the applicant, he was notified in October 2003 by HRC that he should not have been appointed.  The applicant had requested that HRC refrain from withdrawing his appointment so he could pursue his options including a waiver.

8.  On 30 April 2004, the applicant requested a waiver from the Secretary of the Army.  On 30 March 2005, he was informed the Secretary of the Army granted his request for a waiver.  On 29 September 2005, he was issued a letter of appointment to major in the USAR JAG Corps and on 22 December 2005, he accepted the appointment and took the oath of office.  His DOR was established as 
22 December 2005, the date of his acceptance.

9.  On 20 March 2008, the applicant submitted a request to the Office of The Judge Advocate General (OTJAG) to change his DOR from 22 December 2005 to 24 July 2003.  On 24 March 2008, OTJAG denied his request.  OTJAG stated the applicant was not eligible for appointment until after the Secretary of the Army approved his request for a waiver.  This made his appointment and oath of office that was executed 24 July 2003 invalid.
10.  Army Regulation 135-100 (Army National Guard and Army Reserve-Appointment of Commissioned and Warrant Officers of the Army) prescribes policy and procedures for the appointment of commissioned and warrant officers in the Army National Guard of the United States and the USAR.  This regulation provides, in pertinent part, that commissioned officers twice passed over for promotion or otherwise released from active duty or active status are not eligible for appointment, except Regular Army officers discharged with less than 20 years active Federal service may apply for a Reserve commission.  A waiver must be approved and will be granted only by the Secretary of the Army.

DISCUSSION AND CONCLUSIONS:

1.  The applicant had been twice non-selected for promotion in 1997 and 1998.  Therefore, at the time of his application for an appointment in the USAR JAG on 
29 May 2002, he was not eligible for an appointment without a waiver from the Secretary of the Army.  HRC informed him on 23 October 2003 that he should not have been appointed.  Therefore, the applicant knew at that time his appointment and oath of office were invalid.

2.  Army regulations provide for the waiver of requirements that would otherwise make an individual ineligible for appointment as a commissioned officer.  However, the regulations do not provide for the appointment of ineligible individuals and ratifying their appointment at a later date.

3.  The Secretary of the Army's approval of the applicant's request for a waiver did not ratify any previous appointments but merely waived a requirement for appointment, thereby making the applicant eligible for his appointment on
29 September 2005 and making his oath of office on 22 December 2005 valid.

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, 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

____X____  _____X___  _____X___  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 to amend the decision of the ABCMR set forth in Docket Number AR20080019029, dated 13 January 2009.



      ________XXX______________
               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)                                         AR20090004079



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ABCMR Record of Proceedings (cont)                                         AR20090004079



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