IN THE CASE OF:	  

		BOARD DATE:	  22 February 2011

		DOCKET NUMBER:  AR20100013202 


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, in effect, correction of his military records to show that his name was scrolled and approved for appointment in the U.S. Army Reserve (USAR) by the Secretary of Defense prior to his discharge from the Regular Army, and that he was appointed in the USAR the day following his discharge from the Regular Army.

2.  As a result of that correction, the applicant also requests reinstatement of his original Pay Entry Basic Date (PEBD) and Date of Rank (DOR); that it be shown he was assigned to his USAR unit and not the Individual Ready Reserve (IRR); and consideration for promotion to major by the Fiscal Year (FY) 2009 and 2010 major promotion boards.

3.  The applicant states he completed all the documents required to be commissioned in the USAR and assigned to his Troop Program Unit (TPU) in a timely manner.  His break in service has caused his PEBD and DOR to change, his inability to be paid for a multiple unit training assembly (MUTA), and his inability to receive his proper pay.

4.  The applicant provides documents identified as Exhibits A through R as listed in his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he entered the Regular Army on 27 March 2006 as a captain with 5 years, 5 months, and 9 days of prior active service and 14 years,
6 months, and 26 days of prior inactive (USAR) service.

2.  On 18 September 2008, the applicant was notified that he had been considered but not selected for promotion to major for the second time.  As a result, he had to be discharged no later than 1 March 2009.  In an undated memorandum, subject:  Acknowledgement of Mandatory Separation from Active Duty, the applicant elected his desire for an appointment in the USAR.

3.  On 23 January 2009, the Human Resources Command, Alexandria, VA (HRC-ALEX), approved the applicant's unqualified resignation.  [HRC-ALEX has since relocated to Fort Knox, KY]

4.  On 4 February 2009, the applicant was informed that his unqualified resignation was approved.

5.  On 4 February 2009, an e-mail concerning the applicant was sent from the U.S. Army Installation Management Command (IMCOM) to USAR Division East stating "I have the approval on officer.  What I need from him is any previous
DD Fm 214's and if not I need the order bringing Soldier on active duty as a commissioned officer.  He has a separation date of 1 Mar 09 so we need to get this done ASAP."

6.  On 6 February 2009, Orders 037-0501, issued by IMCOM, Headquarters, U.S. Army Garrison, Fort Rucker, AL, reassigned the applicant to the installation transition center for processing for discharge effective 1 March 2009.  Orders 051-0501, issued by the same headquarters, dated 20 February 2009, amended the original orders to assign him to a USAR TPU after his discharge.

7.  On 20 February 2009, the applicant completed a "Written Agreement - Officer Affiliation Bonus (OAB) Acknowledgement" addendum for $10,000.00.

8.  On 22 March 2009, a DA Form 1380 (Record of Individual Performance of Reserve Duty Training) was completed which shows the applicant attended a multiple unit training assembly (MUTA) on 20, 21, and 22 March 2009.

9.  On 1 April 2009, orders were issued reassigning the applicant from the IRR to a USAR TPU.

10.  On 9 April 2009, the applicant executed a DA Form 71 (Oath of Office - Military Personnel) for appointment as a captain in the USAR.

11.  On 20 August 2009, Orders C-08-915267, issued by HRC, St. Louis, MO (HRC-STL), reassigned the applicant to the IRR based on his USAR appointment.  The additional instructions section states "PEBD and DOR to be adjusted."

12.  On 28 January 2010, in a letter from HRC-STL to the applicant, he was informed that he was not considered by the FY 2009 USAR major promotion board and his name would not be considered by the FY 2010 USAR major promotion board.  It was explained that because he had a break in service, he was not eligible for promotion consideration until he had served a year from his date of USAR appointment on 9 April 2009.

13.  In the processing of this case, on 4 November 2010, an advisory opinion was obtained from the Chief, Reserve Appointments and Accessions Branch, HRC, Fort Knox.  The advisory official explained that the President delegated the authority to appoint officers to the Secretary of Defense and that authority cannot be further delegated.  Since there were administrative problems getting the applicant "scrolled" (approved by the Secretary of Defense) the advisory official recommends approval of the applicant's request to correct his records to eliminate the break in service.

14.  On 4 November 2010, a copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He did not respond.

DISCUSSION AND CONCLUSIONS:

1.  It is clear that numerous errors occurred in the applicant's appointment in the USAR.  He indicated in writing his desire to be appointed in the USAR when he was notified he was not selected for promotion to major for the second time in September 2008.  E-mail records further confirm the appropriate officials were working on the applicant's USAR appointment well in advance of his discharge.

2.  As such, it would be appropriate to show that the applicant was "scrolled" prior to the date of his discharge from the Regular Army and he was appointed in the USAR as a captain on 2 March 2009, the day following his discharge from the Regular Army.

3.  Since the applicant was appointed in the USAR and not released from active duty, he could not be assigned directly to a TPU.  He would have had to be appointed in the USAR with assignment to the IRR.  As such, it would not be appropriate to change the applicant's assignment in the IRR and transfer to his TPU.  However, since the applicant's DD Form 214 and orders showed that he was assigned to his TPU, it would be in the interest of justice to show his assignment to the IRR on 3 March 2009 and assignment to his TPU on 4 March 2009.  This would establish his entitlement to the pay he earned for the March 2009 MUTA.

4.  Since the foregoing corrections will eliminate the applicant's break in service, his DOR and PEBD will revert back to their original dates administratively.  No correction by the Board is necessary to correct those dates.

5.  Likewise, since this correction will eliminate the applicant's break in service, he is now eligible for promotion consideration to major, USAR under the FY 2009 and FY 2010 criteria.

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:

	a.  showing that the applicant was "scrolled" in a timely manner to enable him to be appointed in the USAR as a captain on 2 March 2009, the day following his discharge from the Regular Army;
   
   b.  showing he was assigned to the IRR on 2 March 2009 and assigned to his TPU on 3 March 2009;
   
   c.  giving him promotion consideration to major, USAR under FY 2009 and
FY 2010 criteria;
   d.  if selected for promotion to major, by promoting him to major if he is otherwise qualified and by giving him the DOR and effective date of promotion which he would have received if he had been promoted by the regularly scheduled promotion board; and
   
   e.  if not selected for promotion, notifying him accordingly.



      ___________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)                                         AR20100013202



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100013202



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1