IN THE CASE OF:	  

		BOARD DATE:	  10 May 2011

		DOCKET NUMBER:  AR20100019183 


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:

* reinstatement of his Regular Army rank as captain effective 30 July 2008
* his medical coverage be backdated
* back pay appropriate for a captain with his time in service effective 30 July 2008
* immediate reinstatement to Regular Army (RA) status
* adjustment of his Officer Record Brief (ORB) so he can be assigned to a position that is competitive

2.  The applicant states he was honorably discharged in January 2002 as a captain and he reenlisted in 2008 as a specialist.  He should have reenlisted as a captain and the Secretary of the Army informed him of this.  This error was eventually corrected, but as a result his pay, date of rank, status, and medical benefits were adversely affected.  He diligently attempted to have the U.S. Army Human Resources Command (HRC) handle this issue, but he was unsuccessful.

3.  In a letter he wrote to a Member of Congress, he states he contacted HRC in March 2008 about returning to active duty and he was referred to the "Call to Active Duty" program.  He was informed he did not qualify for the program because he was separated on the overweight program.  He was also informed he would have to enlist as a specialist and then apply for his commission upon completion of the Warrior Transition Course (WTC).  He indicates he questioned the validity of the process but received the same answer from several personnel, so he elected to enlist as directed.

4.  He states that following WTC he sought to submit his packet and he was informed he would have to wait until his first duty station.  His commissioning packet required a physical and several letters of recommendation which delayed completion until March 2009 as the unit was preparing intensively for deployment.  He deployed to Afghanistan and he submitted his application in April 2009.  In November 2009 his commission was reinstated to his former rank of captain but it was a Reserve, rather than a Regular Army, commission.  He did not request to be placed in the Reserve nor was he briefed that it would be his status upon his re-commission.

5.  He further states he was involuntarily placed in an Individual Ready Reserve status at a time when his wife was having brain surgery, thereby stopping his benefits.  Since HRC separated him under an incorrect code, he was also only receiving specialist pay, not captain pay as he was entitled to.  In December 2009, he was told he had to resubmit the exact same packet to a different program.  In the meantime, HRC placed him in a Reserve position.

6.  The applicant provides a letter from the Office of the Staff Judge Advocate, Fort Lee, VA, subject:  Petition to Correct Military Record of (applicant's name and social security number), dated 12 July 2010.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  In his petition, counsel states, in effect, the applicant served honorably for more than 13 years in the Army with enlisted and commissioned service.  He was honorably discharged in the rank of captain in January 2002.  In March 2008, he contacted Headquarters and Headquarters Company (HHC) about coming back into the Army on active duty.  HHC informed him he would have to come back into the Army as a specialist since he was discharged for being overweight.  Because he wanted to serve the United States and was misinformed, he came back into the Army as a specialist.  However, he should have come back into the Army as a captain because he had already completed a commissioning source program in 1996.

2.  Counsel states once the applicant was informed he should have come back into the Army as a captain and not a specialist, he contacted HHC to try to correct the error, but nothing was done.  He also contacted the recruiting station in Columbia, MO, to determine why he did not come back on active duty as a captain and the recruiting station did not understand why he was back on active duty as a specialist.  After 2 years of trying to have this error corrected, the applicant is still being paid as a specialist.

3.  Counsel further states the Army owes the applicant "SEVENTY THOUSAND THREE HUNDRED SIXTY DOLLARS AND TWENTY-SIX CENTS ($70,360.26)" in back pay plus the cost of living allowance difference from December 2008 to May 2010.  The applicant is eager that this Board will be able to get him his back pay, correct his ORB, have his status changed from Reserve to Active Army since he has been on active duty since 2008, pay his medical bills as a result of his status being Reserve and not Active Army, and have an apology letter written to him for all the grief he experienced to have this matter corrected.

4.  Counsel provides 11 enclosures outlined on page 2 of his petition.

CONSIDERATION OF EVIDENCE:

1.  Having prior active service and inactive service, he was commissioned as a second lieutenant in the RA on 1 June 1996.  He was promoted to captain on 1 October 2000.  On 20 January 2002, he was honorably discharged for substandard performance.

2.  There is no evidence that shows he applied for reappointment in the RA as a captain in 2008.

3.  On 20 July 2008, he enlisted in the RA for a period of 3 years and 16 weeks in pay grade E-4.

4.  HRC's Soldier Management System (SMS) records an 8 April 2009 action where HRC reviewed his request for reappointment for call to active duty and recommended approval in the Transportation Corps for an Active Component appointment.

5.  HRC's SMS records a 4 May 2009 conversation with the applicant wherein he stated he reentered the Army in July of 2008 under the direction of HRC that he needed to be enlisted in the Army in order to submit his packet to return to the officer ranks.

6.  On 2 November 2009, he was honorably discharged to accept a commission in the Army.  His DA Form 61 (Application for Appointment) is not available.

7.  He was informed by memorandum, dated 2 November 2009, he was appointed as a Reserve commissioned officer of the Army effective upon his acceptance.

8.  On 3 November 2009, he signed an oath of office accepting appointment as a Reserve commissioned officer.  On 19 May 2010, he returned to active duty as a Regular Army officer.

9.  In the processing of this case, a staff advisory opinion was obtained from the Chief, Reserve Appointments and Accessions Branch, HRC, Fort Knox, KY, on 23 February 2011.  The advisory official states:

* he was separated from active duty for substandard performance on 20 January 2002
* upon his desire for reentry, in March 2008, he was given incorrect information by his HHC and he executed an enlistment contract
* if he had spoken with anyone in their [HRC's] office he would have been advised he could apply for reappointment to captain
* in February 2009, their office received his application for reappointment in the U.S. Army Reserve (USAR) with concurrent call to active duty
* once approved, he was reappointed as a captain and he executed an oath of office on 3 November 2009 which should have corrected his rank and pay rate
* their records indicate his request for active duty status was accepted and he was issued an order effective 19 May 2010
* the discrepancies concerning his reentry option and his current pay status are a result of misinformation and not a result of any action taken by their office

10.  On 25 February 2011, 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.  On 10 March 2011, he responded.  In summary, he stated:

* the process he was directed to use to return to active duty was incorrect from the Active component
* he made it clear to both HRC, St. Louis, MO, and HRC, Alexandria, VA that his intent was to return to active duty, not Reserve
* his paperwork clearly states an active duty request
* he initiated an enlistment contract in 2008 at the direction of HRC as part of the process
* he had no intention of remaining in the Army as an enlisted Soldier
* he was instructed by HRC he was required to go this route
* after conversations with the Under Secretary of the Army while on deployment to Afghanistan he was told he should have as a captain returned in July 2008


* HRC directed him to submit the same packet twice, once to have his commission reinstated, and then to return to active duty
* he realizes the issue was misinformation, but not from his end
* he should not have to suffer from this misinformation, both financially and professionally

DISCUSSION AND CONCLUSIONS:

1.  He was honorably discharged from the RA on 20 January 2002 in the rank of captain for substandard performance.

2.  He contends he contacted HRC-Alexandria in March 2008 about returning to active duty and he was referred to the "Call to Active Duty" program.  His contention that he questioned the validity of the process (to enlist as a specialist and then apply for his commission) was noted.

3.  It is also noted that his counsel's referring to "HHC" appears to be repeated in HRC's advisory opinion, where HRC states his current pay status is a result of misinformation and not a result of any action taken by their [HRC's] office.  However, a review of HRC's SMS indicates the applicant did at least talk to HRC prior to his appointment.

4.  Nevertheless, the bottom line is that he did not have to enlist at that time if he believed he was being given misinformation.

5.  He voluntarily enlisted in the RA on 30 July 2008 for a period of 3 years and 16 weeks in pay grade E-4.

6.  He contends he was misinformed by HRC and he should have entered active duty on 30 July 2008 as a captain.  However, there is no evidence that shows he applied for reappointment as a captain in 2008.  His DA Form 61 is not available for review.

7.  He contends he did not request to be placed in the USAR in 2009.  However, the advisory opinion states that in February 2009 the Reserve Appointments and Accessions Branch at HRC received his application for reappointment in the USAR with concurrent call to active duty.  He was informed by memorandum that he had been accepted for appointment in the USAR and he signed an oath of office accepting appointment in the USAR.  He did not have to accept that USAR appointment if he believed he should have been appointed as a Regular Army officer.

8.  His request for active duty status was accepted and he was returned to active duty as a Regular Army captain on 19 May 2010.

9.  He provides no evidence showing he is not being paid correctly.

10.  Based on the foregoing, there is an insufficient basis for granting the requested relief.

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 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)                                         AR20100019183



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ABCMR Record of Proceedings (cont)                                         AR20100019183



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