IN THE CASE OF:	  

		BOARD DATE:	  3 August 2010

		DOCKET NUMBER:  AR20090021423 


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 correction of his military records to show his date of appointment in the U.S. Army Reserve (USAR) as 26 August 2005.

2.  The applicant states he signed DA Form 71 (Oath of Office - Military Personnel) on 26 August 2005.  He checked the status each month and was told that it was "up to the scroll."  Then he was told that it would have to be resubmitted.  On 7 November 2005, he signed another DA Form 71.  He did not sign any other document at that time.  He believes that his date of commissioning should be when he originally signed his oath of office.  The 
2 months and 1 week delay has caused him to lose time in grade and an additional year for promotion to captain. 

3.  The applicant provides, in support of his application, a copy of a DA Form 71 dated 26 August 2005.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  At the time of his application, the applicant was a first lieutenant, USAR, serving in a troop program unit.

3.  The applicant's DA Form 5074-1 (Record of Award of Entry Grade Credit (Health Services Officers)) dated 6 September 2005, filed in his Official Military Personnel File (OMPF), shows in:

	a.  Block 3 - Date of Appointment (or date entered active duty): 26 August 2005;

	b.  Block 33 - Date Entered Active Duty (or date of appointment): 26 August 2005 lined out and 7 November 2007 penciled in;

	c.  Block 35 - Date of Rank: 26 August 2005 lined out and 7 November 2007 penciled in; and

	d.  Blocks 36 and 37 - Authentication: signed by the human resources assistant and the USAR Program Manager.

4.  The applicant's OMPF contains a Memorandum through the Health Care Recruiter, subject: Appointment as a Reserve Commissioned Officer of the Army Under Title 10, USC 12201 and 12203" dated 7 November 2005.  This memorandum indicates that the applicant accepted his appointment as a second lieutenant, Army Nurse Corps, on 7 November 2005 with the same effective date and date of rank. 

5.  The applicant's OMPF contains a DA Form 71, dated 7 November 2005, signed by both the applicant and the officer who administered the oath.

6.  The applicant was promoted to first lieutenant effective 6 November 2007.

7.  The applicant has provided a copy of a DA Form 71, dated 26 August 2005, showing signatures of both him and the same individual who signed the DA Form 71 that is currently filed in his OMPF.

8.  Authority granted to the Secretaries of the Military Departments in Secretary of Defense Memorandum, Subject:  Re-delegation of Authority under Executive Order 12396, dated 9 December 1982, to appoint officers under section 624 of Title 10, U. S. Code, in the grades of O-2 and O-3 was rescinded effective 1 July 2005 based on advice from the Department of Justice that prohibits redelegation below the Secretary of Defense of the President’s authority to appoint military officers.  All military officer appointments under section 12203 of Title 10, U. S. Code, including original appointments, in the Reserve of the Army, Reserve of the Air Force, Naval Reserve, and Marine Corps Reserve, not previously approved by 30 June 2005, shall also be submitted to the Secretary of Defense.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to show his date of appointment in the USAR as 26 August 2005.

2.  The evidence of record clearly shows that the DA Form 5074-1 was changed from 26 August 2005 to 7 November 2005.  However, it does not provide any explanation for the change.

3.  Effective 1 July 2005, less than 2 months prior to the date the applicant took his initial oath of office, the policy that allowed the Secretary of the Army to appoint officers was rescinded.  It appears the office that had him execute his oath of office on 26 August 2005 was not aware of the policy change.  In reality, he was not authorized to take this oath of office until after the Secretary of the Defense approved his appointment, which was not done until 7 November 2005.

4.  The only way the applicant's date of appointment could be changed is by showing that the Secretary of Defense approved his appointment on 26 August 2005.  However, this Board does not have jurisdiction over Department of the Defense records and therefore, could not make that type of correction.

5.  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 for correction of the records of the individual concerned.




      _______ _   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)                                         AR20090021423





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ABCMR Record of Proceedings (cont)                                         AR20090021423



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