BOARD DATE:	  31 January 2012

		DOCKET NUMBER:  AR20110001602 


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 her military records to show she was appointed as an officer in the U.S. Army Reserve (USAR) on 7 October 2009.

2.  The applicant states:

* she enlisted in the USAR on 7 August 2009 and was told she would be commissioned as second lieutenant (2LT) within 45 days
* she did not receive her commission until 14 April 2010
* her application for appointment was delayed and not timely processed by the U.S. Army Recruiting Command (USAREC)
*  her name was not added to the scroll until the last minute
* she made several phone calls to USAREC and the U.S. Army Human Resources Command (USAHRC)
* she was told by the USAHRC that USAREC should have her submit the application for appointment; instead USAREC did what was in their best interest, not hers
* she had to give up one basic branch school date
* she held her prior rank as sergeant (SGT) 1 year prior to contracting as a direct commission applicant
* she has several e-mails her command sent to USAREC and USAHRC regarding processing her application for appointment in a timely manner




3.  The applicant provides a:

* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) for the period ending 6 July 2005
* DA Form 61 (Application for Appointment, dated 2 July 2009
* Commission Timeline with dates from 7 August 2009 through 5 October 2010
* four-page email, dated 22 January 2010, from the 416th Engineer Command to the USAREC
* six-page e-mail, dated 1 March 2010, from the 416th Engineer Command to USAREC 
* a six-page e-mail, dated 5 March 2010, from USAREC to the 416th Engineer Command 
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 23 September 2010
* one-page Army Knowledge Online (AKO) e-mail, dated 13 April 2010

CONSIDERATION OF EVIDENCE:

1.  The applicant had prior service in the Air National Guard.  A DA Form 61, dated 2 July 2009, shows she completed her application for appointment on this date.  On 8 August 2009, the applicant enlisted in the USAR.  

2.  Orders 10-126-00013, issued by Headquarters, U. S. Army Reserve Command (USARC), dated 6 May 2010, honorably discharged the applicant from the USAR, effective date 16 April 2010.  

3.  Orders 10-127-00002, issued by the same headquarters, dated 7 May 2010, amended Orders 10-126-00013 to show her effective date of discharge was changed from 16 April 2010 to 15 April 2010.

4.  On 16 April 2010, the applicant executed a DA Form 71 as a Reserve commissioned officer in the rank of second lieutenant (2LT).  The applicant's USAHRC appointment memorandum shows the applicant accepted appointment as a Reserve Commissioned Officer of the Army on 16 April 2010.

5.  Orders C-05-006914, issued by USAHRC, dated 7 May 2010, assigned the applicant to the 301st Combat Support Brigade Maneuver Enhanced, effective 16 April 2010.

6.  In an advisory opinion, the Chief, Reserve Appointments, USAHRC, states that per 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 authority of the President to appoint officers in the USAR to the Secretary of Defense with no further sub-delegation authorized.  On 1 July 2005, a Department of Defense (DOD) Directive was issued that indicated all officers appointed into the USAR must be on a "scroll" approved and signed by the Secretary of Defense before an Oath of Office can be initiated.  The applicant was selected for direct commission as a result of the November 2009 Officer Direct Commission Board.  Her scroll approval for the appointment was received on 1 April 2010.  She was separated on 15 April 2010; therefore, her Oath of Office could not be executed until 
16 April 2010.  The applicant’s appointment memorandum reflects her approval and acceptance date as 16 April 2010.  The applicant’s request to have her commission date changed to 7 October 2009 is not possible based on her selection, the above Executive Order, and DOD Directive governing scroll confirmation.

7.  On 9 June 2011, the advisory opinion was forwarded to the applicant for information and to allow her the opportunity to submit comments or a rebuttal. She did not reply.

8.  Pursuant to Title 10, U.S. Code, section 1552, the Army Board for Correction of Military Records acts on behalf of the Secretary of the Army in correcting Army records.  This statute provides that this Board has no authority to correct a determination reserved under law to the Secretary of the Defense.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to an adjustment of her date of rank for 2LT.  She has not shown error, injustice, or inequity for the relief she now requests.  The evidence of record shows the Secretary of Defense approved the applicant’s appointment as a 2LT.  The effective date for promotion cannot be prior to approval of the scroll by the Secretary of Defense.

2.  The advisory opinion correctly points out that the applicant was selected for direct commission as a result of the November 2009 Officer Direct Commission Board.  Her scroll approval for the appointment was received on 1 April 2010.  She was separated from the USAR on 15 April 2010; therefore, her Oath of Office could not be executed prior to 16 April 2010.  

3.  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)                                         AR20110001602



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ABCMR Record of Proceedings (cont)                                         AR20110001602



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