BOARD DATE: 24 March 2011
DOCKET NUMBER: AR20110003399
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 18 November 2010.
2. As a result of that correction, the applicant also requests his Pay Entry Basic Date (PEBD) and Date of Rank (DOR) be established as 18 November 2010; that he be given constructive credit and pay from that date to the present; and that his eligibility for promotion to 1st lieutenant (1LT) be calculated from that date.
3. The applicant states he has been performing active duty from 18 November 2010 and assumed he had already been appointed as a 2LT because he had been ordered to active duty. He has performed his duties in good faith and only discovered the error when he did not receive any pay.
4. The applicant provides a memorandum from the U.S. Merchant Marine Academy (USMMA) dated 15 February 2011 and an undated memorandum from the Chief, Officer Division, Deputy Chief of Staff, G-1.
CONSIDERATION OF EVIDENCE:
1. The applicant's records show he graduated from the USMMA and was approved for appointment in the Regular Army (RA) as a second lieutenant on 9 August 2010, pending his report to active duty on 16 May 2011.
2. On 17 November 2010, Orders A-11-031941 were published which ordered the applicant to a 179 day tour of active duty for operational support (ADOS) as a second lieutenant, Active Army, effective 18 November 2010.
3. On 5 January 2011, the Secretary of Defense appointed the applicant as a 2LT, USAR. On the same day the applicant accepted his commission and executed his oath of office.
4. In the memorandum from the G-1 the events which led to the applicant's problem were chronicled. In summary:
a. the applicant was selected for accession to active duty for service in the Regular Army (RA);
b. the applicant is scheduled to report for initial entry rotary wing aviator course with concurrent appointment in the RA on 16 May 2011;
c. the applicant's RA appointment was approved by the Secretary of Defense on 9 August 2010 and the Human Resources Command published RA appointment orders pending his anticipated oath of office on 16 May 2011;
d. On 17 November 2010 ADOS orders were published for the period 18 November 2010 through 15 May 2011 based on a request by the G-1 in response to a request by the USMMA;
e. Because the applicant had already been put into the personnel database when his appointment had been approved by the Secretary of Defense (albeit with an incorrect DOR), it appeared he was already commissioned even though he had never executed an oath of office for either a Reserve or a Regular commission at that time;
f. When the applicant was not paid, an investigation was conducted and it was determined that the applicant's appointment had not been formally approved by the Secretary of Defense (scrolled).
g. The Secretary of Defense approved the applicant's USAR appointment on 5 January 2011.
5. The G-1 recommends approval of the applicant's request.
6. The memorandum from the USMMA provided by the applicant lauds the applicant's contributions to the USMMA while on ADOS and recommends that the applicant be given credit for the time he served on active duty.
7. 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 numerous 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 as a 2LT in the USAR.
2. This delay in appointment has resulted in the applicant not being paid or being given active duty credit for service he already performed in good faith.
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 2LT on 18 November 2010, the day he entered active duty on his ADOS tour.
5. Since the foregoing correction will establish the applicant's PEBD, DOR, and entitlement to pay and allowances as 18 November 2010, no correction order by the Board is necessary to correct those dates or his entitlement to pay and allowances or eligibility for promotion to 1LT.
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 2LT on 18 November 2010.
_______ _ 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) AR20110003399
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