IN THE CASE OF:
BOARD DATE: 26 January 2010
DOCKET NUMBER: AR20090006696
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 that the date of his U.S. Army Reserve (USAR) appointment be changed.
2. The applicant states he submitted a request for resignation in July 2007, and his last day on active duty was 15 July 2008. He further states it was his belief he was transferred to the United States Army Reserve (USAR) on 16 July 2008, the day following his release from active duty. He claims that due to an administrative error during his active duty separation processing, the paperwork appointing him in the USAR was forwarded to the Department of Defense and approved three months late. He concludes that as a result of this error, his record now shows a three-month break in service from 16 July 2008 to
23 October 2008 and has resulted in an extension of his military obligation and adversely impacted all future promotion consideration.
3. The applicant provides a defacto appointment letter dated 15 July 2008; a defacto appointment letter dated 23 October 2008; orders releasing him from active duty; a DD Form 214 (Certificate of Release or Discharge from Active Duty); an Officer Record Brief; and unqualified resignation documents in support of this application.
CONSIDERATION OF EVIDENCE:
1. The applicant was appointed in the USAR, Signal Corps (SC) as a second lieutenant effective 25 April 2003 and entered active duty on 1 September 2003.
2. The applicant served on active duty for 4 years, 10 months, and 15 days until being honorably discharged, in the rank of captain, for miscellaneous/general reasons on 1 September 2003.
3. The applicant was issued an appointment memorandum, dated 23 October 2008. This document indicates his appointment as a captain in the USAR was approved by the Secretary of Defense on 23 October 2008, with a defacto appointment date of 16 July 2008. It also indicated that his date of rank and pay entry basic date were to be adjusted to the permanent Reserve appointment date of 24 October 2008, and the break in service period was from 16 July 2008 to
23 October 2008.
4. In an advisory opinion, dated 29 August 2009, the Chief, Reserve Appointments, Human Resources Command, St. Louis, stated that in Executive Order 13358, Assignment of Functions Relating to Certain Appointments, Promotions, and Commissions in the Armed Forces, dated 30 September 2004, 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.
5. The Chief, Reserve Appointments, explained that the applicant left active duty on 15 July 2008, and due to an administrative error, he was not submitted for scroll approval by the Secretary of Defense before he left active duty. The omission was discovered in September 2008, and at that time his name was submitted for scroll approval. The approval received by their office was dated
23 October 2008, and based on the Executive Order, the appointment memorandum and the DA Form 71 (Oath of Office - Military Personnel) could not be issued until scroll approval was received. As a result, the applicant's appointment memorandum had to reflect the date of 23 October 2008, and the discrepancy between 16 July 2008 and 23 October 2008 erroneously indicates a break in service. The applicant was issued a defacto appointment memorandum to show it was recognized he had actually been appointed on 16 July 2008.
6. The Chief, Reserve Appointments concluded that the applicant was one of many individuals affected by a decision initiated at the Secretary of Defense level and his office does not have the authority to circumvent the referenced Executive Order and change the appointment date to 16 July 2008. His office recommends approval of the applicant's request that his date of appointment be corrected to read 16 July 2008.
7. The advisory opinion was forwarded to the applicant for acknowledgement and/or rebuttal on 27 August 2009. However, no response was received.
DISCUSSION AND CONCLUSIONS:
1. In view of the circumstances in this case, the applicant is entitled to correction of his records to show he was appointed in the USAR, SC, as a captain, effective 16 July 2008.
2. The administrative error in the processing of the applicant's appointment resulted in his appointment being delayed for 3 months. This caused the applicant to be penalized for an action that was beyond his control.
3. Therefore, in the interest of equity and justice, it would be appropriate to correct the date of his appointment in the USAR to 16 July 2008.
BOARD VOTE:
____X___ ____X___ ___X____ 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 16 July 2008.
_______ _ _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) AR20090006696
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