IN THE CASE OF:	  

		BOARD DATE:	  31 May 2011

		DOCKET NUMBER:  AR20100020937 


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 an:

* adjustment of her U.S. Army Reserve (USAR) appointment date from 14 November 2008 to 1 February 2007
* adjustment of her military pay to show she receives pay as an O3E vice O3 based on prior enlisted service

2.  The applicant states her USAR appointment was incorrectly processed when she joined the USAR on 2 February 2007.  The error was not discovered until October 2008 when she contacted the promotions branch to request a Special Selection Board (SSB).  She was referred to the appointments branch where it was discovered that she was not properly scrolled in 2007 and in order to continue legally as an officer in the USAR she had to redo her appointment.  Her name was added to the scroll and she was approved for a USAR appointment effective 14 November 2008.  She has been serving as a USAR officer since 2 February 2007 and she has been paid as such.  She served as an enlisted Soldier over 4 years and she should be paid as an O3E.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 30 January 1996
* DD Form 214, dated 1 February 2007
* Department of the Army (DA) Memorandum
* DA Form 71 (Oath of Office-Military Personnel)
* U.S. Army Human Resources Command (HRC) orders
* DFAS [Defense Finance and Accounting Service] Form 702 (DFAS Military Leave and Earnings Statement)
* Department of the Treasury-Internal Revenue Service Form W-2 (Wage and Tax Statement)

CONSIDERATION OF EVIDENCE:

1.  The applicant was notified by separate correspondence of the procedures to follow to correct her basic pay based on her prior period of enlisted service.  Therefore, the adjustment of her basic pay will not be further addressed in this Record of Proceedings.

2.  Having had prior enlisted service from 17 July 1990 to 30 January 1996, the applicant's records show she was appointed as a USAR Air Defense (AD) Artillery Corps second lieutenant and executed an Oath of Office on 31 January 1996 with concurrent call to active duty.  She served in staff and leadership positions and she attained the rank/grade of captain (CPT)/O-3 in the Regular Army (RA) on 1 February 2000.  

3.  In an undated memorandum, HRC notified the applicant that due to non-selection for promotion to major (MAJ) she would be involuntarily separated from active duty not later than 1 February 2007.

4.  She acknowledged receipt of the HRC memorandum informing her of the mandatory separation date of 1 February 2007 and she indicated that she desired an appointment in the USAR. 

5.  It appears that prior to her mandatory discharge date she submitted a request for unqualified resignation.  Her request was ultimately approved by HRC on 10 January 2007.  Accordingly, on 1 February 2007, she was discharged from active duty.  Her DD Form 214 for this period of service shows she completed 11 years and 1 day of creditable active service.

6.  It appears that on 2 February 2007 the applicant executed an Oath of Office and she was appointed as a USAR AD CPT.  She was assigned to Headquarters, USAR 4th Cavalry Brigade, Fort Knox, KY.  However, due to an error on the part of the unit, the applicant's appointment and Oath of Office were found to be invalid and she had to be reappointed.  

7.  Subsequently, she was issued an appointment memorandum, dated 14 November 2008, showing she was appointed a CPT in the USAR, AD, with an acceptance date of 9 December 2008.  The appointment memorandum stated that her appointment was approved by the Secretary of Defense on 14 November 2008.  Her date of rank (DOR) and pay entry basic date were to be adjusted to her permanent Reserve appointment date of 15 November 2008.  Her defacto appointment date was 2 February 2007 and her break in service was established as 2 February 2007 to 14 November 2008.

8.  On 2 May 2011, during the processing of this case an official at HRC, Office of Personnel Management Directorate, by email, stated the advisory opinion issued on 18 February 2009 was still valid.  In the 18 February 2009 advisory opinion, an official at HRC, Reserve Appointments recommended approval of the applicant's request for an adjustment of her appointment date.  The official stated the applicant should have been scrolled prior to her actual appointment date in February 2007 and that:

	a.  Reference Executive Order 13358, Assignment of Functions Relating to Certain Appointments, Promotions, and Commissions in the Armed Forces, dated 30 September 2004, the White House delegated the authority of the President to appoint officers in the USAR to the Secretary of Defense with no further sub-delegation authorized.

	b.  For years, all services were doing appointments in their Reserves at a much lower level.  In the Executive Order referenced above, the Department of Justice made it clear that delegation of authority should always have been from the President to the Secretary of Defense only.  As of 1 July 2005, the directive was issued that all officers appointed into the USAR must be on a scroll signed by the Secretary of Defense before an Oath of Office could be initiated. 

	c.  The applicant's reappointment memorandum, dated 14 November 2008, with an effective date of 14 [sic] 15 November 2008 must stand as is due to the scrolling requirement.  Since the scroll submission for the applicant was not approved until 13 [sic] 14 November 2008, the Reserve Appointments Branch cannot issue an appointment effective prior to that date unless officially directed to do so by the ABCMR.

9.  Army Regulation 135-100 (Appointment of Commissioned and Warrant Officers of the Army) prescribes the policies and procedures for the appointment of commissioned officers in the USAR.  This regulation specifies that a commissioned officer of a regular component who is discharged or who resigned may be appointed/reappointed as a Reserve commissioned officer in the grade, with time in grade for promotion purposes equal to the amount of time in the permanent grade held as a regular officer at the time of discharge.

10.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other than General Officers) provides for promotion consideration of USAR officers.  It states that to be eligible for consideration for promotion to the next higher grade, a USAR officer must have continuously performed service on either the Reserve active status list or the active duty list (or a combination of both lists) during the 1 year period ending on the convening date of the promotion board and must meet time in grade requirements as appropriate.  

11.  Table 2-1 of Army Regulation 135-155 states that for promotion from CPT to MAJ, the minimum number of years in the lower grade is 4 years and the maximum number of years in the lower grade is 7 years.  

12.  Army Regulation 135-155 also provides for SSBs.  It states SSBs may be convened to consider or reconsider commissioned officers for promotion when the commissioned officer was wrongly not considered for promotion by a regularly scheduled board because of administrative error or based on erroneous non-consideration or material error.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was discharged from the Regular Army on 1 February 2007.  She was appointed as a USAR officer on 2 February 2007.  However, this appointment was subsequently found to be invalid through no fault of her own; therefore, she was never added to the scroll.

2.  Her name was placed on an approved scroll for reappointment on 14 November 2008 and she was reappointed in the USAR on 15 November 2008.  She was given a DOR of 15 November 2008 and a period of break in service from 2 February 2007 to 14 November 2008.  The applicant was issued a defacto appointment memorandum to show it was recognized that she had actually been appointed on 2 February 2007.

3.  The evidence of record also shows the applicant was promoted to CPT in the RA effective 1 February 2000.  Due to circumstances beyond her control, written approval and inclusion of her name on an approved scroll was not received until 14 November 2008, over 1 year and 10 months after she entered the USAR.  This delay denied her equitable reappointment with an effective date of 2 February 2007 and a DOR of 1 February 2000.

4.  It appears she was caught up in changing business processes that brought individuals from the active component to the Reserve components, i.e., requirements for scrolling and documentation were changing during that period.  Based on the circumstances presented and as a matter of equity in this case, her records should be corrected to show she was appointed in the USAR, as a CPT in the AD, effective 2 February 2007, with a DOR of 1 February 2000, and with no break in service.  

5.  Based on her corrected/adjusted DOR of 1 February 2000, she would have qualified for promotion consideration to MAJ as early as February 2008.  Therefore, her records should be considered by the next scheduled SSB for consideration under the appropriate year criteria for promotion to MAJ.

6.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

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 the applicant was appointed in the USAR, AD, as a CPT, effective 2 February 2007, with a DOR of 1 February 2000, and with no break in service;

	b.  submitting her records to a duly-constituted SSB for consideration for promotion to MAJ under the appropriate year selection board criteria;

	c.  if selected for promotion, her records be corrected by showing she was promoted to MAJ based on her date of eligibility as determined by appropriate Departmental officials using the criteria under which she was selected provided she was otherwise qualified and met all other prerequisites for promotion; and





	d.  if not selected, she should be so notified.



      ____________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)                                         AR20100020937



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ABCMR Record of Proceedings (cont)                                         AR20100020937



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