IN THE CASE OF:	  

		BOARD DATE:	  22 September 2011

		DOCKET NUMBER:  AR20110002003 


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 record to show his name appeared on a "scroll" approved and signed by the Secretary of Defense (SECDEF) and that he executed a DA Form 71 (Oath of Office) for appointment into the U.S. Army Reserve (USAR) Control Group (Reinforcement) on 31 May 2007.

2.  The applicant states that when he was discharged from the Regular Army (RA) on 30 May 2007, he still had 1 year remaining on his contract and should have been transferred into the Individual Ready Reserve (IRR) immediately.  He contends an administrative error was made at the time of his discharge from the RA and transfer into the USAR.  The letter directing his appointment in the USAR and affording him an opportunity to accept the appointment was not prepared the date of his discharge and was not effective until 20 July 2007, which resulted in him having a break in service from 31 May to 20 July 2007.  He further contends that he fully intended to remain in the IRR and the error was out of his control.  He concludes that he was unaware of this problem until he was notified of the break in service on 26 February 2011 and until corrected his promotion date will be in error and will result in loss of time in service as well as pay.

3.  The applicant provides:

* a DA Form 597 (Army Senior Reserve Officers' Training Corps (ROTC) Nonscholarship Cadet Contract)
* two memoranda

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant executed a contractual agreement for enrollment as an ROTC nonscholarship cadet on 9 September 1998 with a projected completion date of May 2000.

3.  The applicant's record contains (and he also provides) U.S. Army ROTC Instructor Group, University of Massachusetts, Amherst, MA memorandum, dated 20 May 2000, Subject:  Appointment as a Reserve Commissioned Officer of the Army Under Title 10, U.S. Code, Sections 591, 593, 2104, 2106 and 2107.
This memorandum shows the Professor of Military Science at the university informed the applicant he had been selected for appointment as a second lieutenant (2LT)/O-1 in the Military Police Corps and afforded him an opportunity to execute a DA Form 71 in order to accept the appointment.  His record contains a DA Form 71 showing he executed the Oath of Office on 20 May 2000.

4.  He was promoted from 2LT/O-1 to first lieutenant (1LT)/O-2 effective 14 March 2002.  He was promoted from 1LT/O-2 to captain (CPT)/O-3 effective 1 February 2004.

5.  The applicant's record contains a DD Form 214 (Certificate of Release or Discharge from Active Duty) which shows he was honorably discharged from the RA on 30 May 2001 and transferred to USAR Control Group (Reinforcement) in the rank/pay grade of CPT/O-3.  This form also shows he was subject to active duty recall by the Secretary of the Army and his Reserve Obligation Date was 26 May 2008.

6.  He was promoted from CPT/O-3 to major (MAJ)/O-4 in USAR Control Group (Reinforcement) effective 31 January 2011.

7.  The applicant's record contains (and he also provides) U.S. Army Human Resources Command (HRC), St. Louis, MO memorandum, dated 30 May 2007, Subject:  Appointment as a Reserve Commissioned Officer of the Army Under Title 10, U.S. Code, Sections 12201 and 12203.  This memorandum shows the Chief, Appointments Branch informed the applicant he had been selected for appointment as a CPT in the Military Police Corps and afforded him an opportunity to execute a DA Form 71 in order to accept the appointment.  This letter also shows the effective date of his appointment was 20 July 2007.

8.  In the processing of this case, an advisory opinion was obtained from the, Reserve Appointments and Accessions Branch, HRC, Fort Knox, KY on 27 June 2011.  That office Chief opined that action for resolution of the applicant's problem partially falls within their area of responsibility and can be resolved by the ABCMR officially directing a defacto appointment to the applicant for 31 May 2007 based upon Executive Order 13358, dated 30 September 2004.

9.  A copy of the advisory opinion was provided to the applicant for comment.  He failed to respond.

10.  In 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 SECDEF 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 SECDEF before an Oath of Office can be initiated.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention was carefully considered and determined to have merit.

2.  Evidence clearly shows an administrative error was made at the time of his discharge which resulted in an apparent break in service.  In view of the fact that he still had a statutory obligation at the time of his discharge, he should have been offered appointment in the USAR in a timely manner and been immediately assigned to the IRR effective the following day his discharge from the RA.  

3.  In view of the foregoing, he is entitled to correction of his record to show his name appeared on a "scroll" approved and signed by the SECDEF and that he executed a DA Form 71 for appointment in the USAR as a CPT on 31 May 2007.


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:

	a.  to show his name appeared on a "scroll" approved and signed by the SECDEF;

	b.  to show he executed a DA Form 71 accepting appointment in the USAR in the rank of captain on 31 May 2007;

	c.  approving a de facto appointment as a captain in the USAR effective         31 May 2007; 

	d.  conducting an audit of his record to determine whether his effective date of promotion and/or date of rank for major should be adjusted based upon this correction; and if so, paying him any monies to which he is entitled 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)                                         AR20110002003





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ABCMR Record of Proceedings (cont)                                         AR20110002003



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