BOARD DATE: 30 June 2011
DOCKET NUMBER: AR20100026837
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, in effect, that he was appointed in the USAR on 17 June 2010 with no break in service.
2. The applicant states he took the oath of office as a Reserve officer and was assigned to a unit. However, he has not been paid for drills performed and has now been told he will have a break in service and a new date of rank (DOR).
3. The applicant provides documents which he lists in his application.
CONSIDERATION OF EVIDENCE:
1. The applicant's records show he was commissioned in the Regular Army on 1 March 2003 with 10 years, 3 months, and 21 days of prior inactive service.
2. On 6 April 2010 the applicant, a major, executed a DA Form 5691-R (Request for Reserve Component Assignment Orders) requesting orders be published assigning him to a U.S. Army Reserve (USAR) unit.
3. On the same day the applicant's separation orders were amended to add his assignment to the USAR unit and a memorandum was sent to the USAR commander informing him of the applicant's assignment.
4. On 16 June 2010, the applicant was honorably discharged.
5. On 17 June 2010, he executed an oath of office as a Reserve officer and was assigned to a USAR unit.
6. His records contain DA Forms 1380 (Record of Individual Performance of Reserve Duty Training) which show he drilled on 10 and 11 July; 20, 21, and 22 August; 18 and 19 September, and 16 and 17 October 2010.
7. The applicant executed a second USAR oath of office on 21 August 2010.
8. In the processing of this case an advisory opinion was obtained by the Human Resources Command (HRC). HRC stated that Executive Order 13358, Assignment of Functions Relating to Certain Appointments, Promotions, and Commissions in the Armed Forces, dated 30 September 2004, delegated the President's authority to appoint officers in the USAR to the Secretary of Defense with no further sub-delegation authorized. On 1 July 2005, the directive was issued that all officers appointed into the USAR must be on a "scroll" approved and signed by the Secretary of Defense before and oath of office can be initiated. In the applicant's case his 16 June 2010 oath of office was invalid because he wasn't "scrolled" until 20 August 2010, which led to him to execute a second oath of office on 21 August 2010. This caused a break in service for the applicant. HRC continues that this break in service may be rectified by the Board directing a de facto appointment to 17 June 2010.
9. The applicant was provided the advisory opinion and given the opportunity to respond. He opted not to provide addition evidence or argument.
10. Pursuant to 10 U.S. Code, section 1552, the ABCMR acts on behalf of the Secretary of the Army in correcting Army records. This statute provides the Board no authority to correct a determination reserved under law to the Secretary of Defense.
DISCUSSION AND CONCLUSIONS:
1. It is clear that errors occurred in the applicant's appointment in the USAR. These errors caused a delay in getting the applicant's name scrolled by the Secretary of Defense and, subsequently, appointed in the USAR.
2. This delay in appointment has resulted in the applicant not being paid for service he already performed in good faith and being shown to have a break in service.
3. However, the appointment scroll, while prepared by the Army, is a Secretary of Defense document. As such, the ABCMR has no authority to change an appointment scroll; but the ABCMR does have the authority to alter appointment and assignment orders of Army officers.
4. As such, it would be appropriate to show that the applicant was appointed in the USAR as a major on 17 June 2010, the day he executed his first USAR oath of office.
5. This correction will reestablish the applicant's DOR, authorize him pay and allowances for drills performed, and eliminate his break in service.
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 showing that the applicant was appointed in the USAR as a major on 17 June 2010 and paying him all back pay and allowances due as a result of this correction.
_______ _ 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) AR20100026837
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