IN THE CASE OF:	  

		BOARD DATE:	19 November 2009

		DOCKET NUMBER:  AR20090010182 


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 his request for correction to the date of his commission in the United States Army Reserve (USAR) to the day after the date of his release from active duty in the Regular Army.

2.  The applicant states that evidence he submitted pertaining to his case was never received as the Board's Record of Proceedings indicated that he did not provide any additional documents in support of his application.  This is not true and the evidence he had included with this request for reconsideration will show that he made two attempts to send his support documents to the Army Review Boards Agency (ARBA).  He also states that the timing of his original application coincided with the time his unit was deploying to Iraq.  Communications by internet, regular mail, and telephone were difficult based on the remote location and their training timeline.  Following his arrival in Iraq, he was able to communicate very effectively by electronic mail (email) and this was how he tried to contact ARBA.  Unfortunately, the ARBA website does not offer any email address beyond the main webmaster's email.  His exchanges with that address were not very helpful.

3.  The applicant further states, in effect, that at the time he received his appointment letter he put it off in lieu of more pressing issues (moving and new civilian job) because the letter stated that he had 90 days to respond.  Unfortunately, he forgot about it until mid-September, which was past the deadline, so he called someone at the Human Resources Command (HRC), St. Louis, Missouri, to verify that he was still able to send in his oath of office.  The woman he contacted advised him that he could do so and he did.  He cannot confirm the date and name of the person he contacted.  He does not believe that the 2 or 3 days he may have been late in returning his oath of office should have affected the outcome of this case.  The Army was 25 days late in sending him the appointment letter past his release from active duty (REFRAD) date.  Regardless of his delay in signing the oath of office, he would have had a break in appointment because the appointment letter was processed 25 days late.  Even if he had returned his oath of office the very next day after he received it, he would still have a break in appointment.  This is in the injustice which could not be corrected by the Appointments Branch.

4.  The applicant also states that at the time he left active duty, he was 6 weeks away from being promoted to captain.  He had also been considered by the Reserve Components Selection Board for promotion to captain and his name is on the list, but once again, he cannot receive the promotion because his date of rank was also adjusted by the break in service.  He should be performing the duties of a captain right now, but instead he remains in a lieutenant's position, while his peers have advanced.

5.  In support of his request for reconsideration, the applicant provides copies of email correspondence between himself and the Supervisor, Reserve Appointments Branch, HRC, St. Louis; the Office of Promotions, Promotion and Notification Branch, HRC; and an ARBA staff member on behalf of the ARBA Webmaster.

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 AR20080014624 on 12 November 2008.

2.  The applicant's military records show he was appointed in the USAR Field Artillery Branch as a second lieutenant effective 15 May 2004.  On 16 April 2004, he was issued orders ordering him to active duty for a 3-year commitment.  He entered active duty on 25 May 2004. He was promoted to first lieutenant effective 29 November 2005.

3.  On 1 May 2005, HRC started using a three-phase process to transition all active duty officers to the Regular Army (RA).  Phase II affected all eligible USAR commissioned officers who were currently serving on active duty and were on the Active Duty List (ADL).  Those officers were automatically switched from ADL active duty officers to RA officers on/or after 11 November 2005.  Since officers did not have the option to decline RA, they were not required to take a new of oath of office.

4.  The applicant submitted a copy of email correspondence from the Supervisor, Reserve Appointments Branch, HRC, St. Louis, wherein he was advised, in effect, that he would need to apply to ARBA to have his break in appointment corrected because he did not resign from the RA in enough time to have his name placed on an approved scroll before his discharge.

5.  The applicant also submitted a copy of email correspondence from the Office of Promotions, Promotion and Notification Branch, HRC, wherein he was advised that his selection would carry over as long as there was no break in the appointment from the RA to the USAR.  He was also advised, in effect, that based on their research it seemed he had a break in service.  He was also advised that if there was a break in appointment, then his date of rank for first lieutenant may need to be adjusted.

6.  The applicant further submitted a copy of email correspondence from an ARBA staff member on behalf of the ARBA Webmaster wherein he was advised that the signature page of his DD Form 149 (Application for Correction of Military Record) had not been received.  Later, he was advised that his documents would be added to his application and the ARBA Case Tracking System did not have the facility to show supporting documents added after initial submission; the message was his confirmation.

7.  There is no evidence the applicant was selected for promotion to captain on the active duty list and met all the qualifications for promotion prior to his discharge from active duty.

8.  The applicant's military records show he was REFRAD for miscellaneous/
general reasons in the rank of first lieutenant on 25 May 2007.  He was transferred to the USAR Control Group (Reinforcement) in the same rank.

9.  A staff member of HRC, St. Louis, verified that the applicant's name was listed on the May 2007 appointment scroll that was approved on 18 June 2007.

10.  The applicant's records contain an appointment memorandum, dated 18 June 2007, showing he was appointed in the USAR Field Artillery Branch as a first lieutenant effective 20 September 2007.  The memorandum advised the applicant to execute the enclosed oath of office and return it promptly.  His execution and return of the oath of office constituted his acceptance of appointment.  Prompt action was requested since cancellation of that appointment was required if acceptance was not received within 90 days.  The applicant executed his oath of office on 20 September 2007.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to correction to the date of his commission in the USAR to the day after the date of his release from active duty in the RA.

2.  The applicant's contentions that his date of appointment in the USAR should be corrected to 26 May 2007 have been noted.  However, the evidence of record shows he was REFRAD on 25 May 2007 and his name was placed on a USAR appointment scroll that was approved on 18 June 2007.  He was issued an appointment memorandum, dated 18 June 2007, wherein he was advised to execute the enclosed oath of office and return it promptly.  There is no evidence to show his appointment in the Reserve was retroactive to the day after his REFRAD.  The date of appointment is the date of approval of the USAR scroll.  He was also advised that if it was not received within 90 days, his appointment would be cancelled.  The evidence shows he executed his oath of office on 20 September 2007.  There is no evidence to show he was erroneously or unjustly prevented from accepting his Reserve commission in a timely manner.  By his own admission, he neglected executing his oath of office and returning it promptly in lieu of more pressing issues (moving and new civilian job) because he believed he had 90 days to do so.

3.  Based on his REFRAD date and date of approval of the scroll, he would still have had a break in service whether he returned his oath of office on 18 June 2007 or not.  It was to his advantage to return the oath as soon as possible to ensure his acceptance in the USAR on a date as close to the date of approval of the scroll.  His failure to do so resulted in a later acceptance date.  There is no evidence to show there was delay in the approval of the scroll.  Upon its approval, the evidence shows the applicant was notified in a timely manner and advised to return his acceptance in a prompt manner.

4.  Documentation submitted by the applicant contains information that was previously reviewed and addressed by the Board in the 12 November 2008 Record of Proceedings.

5.  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 this requirement.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

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 AR20080014624, dated 12 November 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)                                         AR20090010182



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ABCMR Record of Proceedings (cont)                                         AR20090010182



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