IN THE CASE OF:	   

		BOARD DATE:	  1 November 2011

		DOCKET NUMBER:  AR20110010028 


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 records to show he was:

   a.  Transferred to the U.S. Army Reserve (USAR) Control Group (Individual Ready Reserve (IRR) after his release from active duty on 15 September 1990.

   b.  Awarded 14 years of constructive service credit.
   
   c.  Reappointed in August 2010 in the rank of major (MAJ) instead of first lieutenant (1LT).

2.  The applicant states:

	a.  On 17 August 2010, he was reappointed in the USAR, in the rank of 1LT, because officials at the U.S. Army Human Resources Command (HRC) could not locate his record of service beyond 15 September 1990.  Absent this error and with over 14 years of prior commissioned service he should have been reappointed as a MAJ instead of a 1LT.  

	b.  On 8 June 2011, an official at the Office of the Chief of Legislative Liaison (OCLL) responded to the applicant's Member of Congress and stated that there is no evidence the applicant was appointed as a Reserve officer and actually placed in the control group subsequent to his discharge from the Army in September 1990.  


	c.  In light of the OCLL response, it is clear that HRC officials do not recognize that he was transferred to the IRR after his release from active duty on 15 September 1990.  He contends that he should have been transferred to the IRR in 1990 and that his indefinite red identification card and the documents previously submitted to this Board support his contention.  HRC recognizes his mandatory service obligation as having been fulfilled in May 1994.  For consistency, the Board could chose to credit him with those 8 years of service. 

	d.  The repercussions of this error are substantial for his renewed career.  Had he been placed in the IRR, his record would have been considered by the 1991 or 1992 Reserve Components Selection Board (RCSB) for promotion to captain (CPT).  The Board should address this injustice.

3.  The applicant provides:

* June 2011 OCLL letter
* September 1990 DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Orders 127-104 (1990 separation orders)
* Copy of an identification card
* DA Form 61 (Application for Appointment)
* A page of Army Regulation 135-100 (Appointment of Commissioned Officers and Warrant Officers of the Army)
* Two pages from Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers)

CONSIDERATION OF EVIDENCE:

1.  The applicant entered the U.S. Military Academy on 1 July 1982 and he graduated on 28 May 1986 with a Bachelor of Science degree.  He was appointed as a Regular Army Armor second lieutenant and executed an oath of office on 28 May 1986.  

2.  He completed the Armor Officer Basic Course from July to November 1986, and he was promoted to 1LT on 28 November 1987.  He also completed 3 years of foreign service with the 2nd Armored Division (Forward) in Germany.

3.  He was honorably discharged from active duty on 15 September 1990 in accordance with paragraph 3-49g of Army Regulation 635-100 (Officer Personnel).  His DD Form 214 shows he completed 4 years, 3 months, and 18 days of creditable active duty.  This form also shows in:

* Item 6 (Reserve Obligation Termination Date) - "00  00  00"
* Item 9 (Command to which Transferred) – “USAR Con Gp (Reinf) ARPERCEN 9700 Page Blvd, St Louis, MO  63132”
* Item 28 (Narrative Reason for Separation) - "Reduction in authorized strength"

4.  His discharge orders stated that "the oath of office for USAR appointment will be executed prior to your transition date." 

5.  Based on the available evidence he was discharged (completely severed from military service); he had no military service obligation.  There is no record of any military activity in the applicant's records after his honorable discharge from active duty in September 1990.

6.  After a break in service, on 21 December 2009, he submitted a DA Form 61 wherein he listed the rank for which he was applying was that of a MAJ.  He also listed his prior service from 28 May 1986 to 15 September 1990 and the highest grade and component as "02 RA."

7.  He was appointed as a Reserve commissioned officer in the rank of 1LT and executed an oath of office on 17 August 2010.  He was assigned to the Office of the Chief Army Reserve, Pentagon, VA, in a Drilling Individual Mobilization Augmentee (DIMA) status. 

8.  On 25 April 2011, by email, an official at HRC Reserve Appointments and Accessions Branch stated the Reserve Appointments and Accessions Branch uses the provisions shown in Table 1-2 from section 1-9a of Army Regulation 135-100 when determining the grade for reappointment.  This table applies to special branches.  Officers are reappointed at the highest grade held.  

9.  On 8 June 2011, by letter to the applicant's Member of Congress regarding a determination of the applicant's appointment grade, an OCLL official stated that:

	a.  The proponent of Army Regulation 135-100, the Deputy Chief of Staff, 
G-1, verified that Table 1-2 is appropriate in determining the appointment grade for chaplains, in conjunction with paragraph 3-7, but it is not used when reappointing former commissioned officers as was the case with the applicant. 

	b.  Under Title 10, U.S. Code, section 12206, former commissioned officers may be appointed in the grade previously held and credited with service in grade for determining their date of rank (DOR).  The provisions of the statute are implemented within paragraphs 6.2.2.8 and 6.2.2 of the Department of Defense Instructions (DODI) 1310.02 and 1312.03 respectively.  

	c.  Further, paragraph 1-9a(2) of Army Regulation 135-100 implements this guidance within the Army by indicating former officers will be appointed in the highest grade to which entitled under Title 10, USC, section 3359.  It must be noted that the last provision in Title 10, USC, section 3359, was reenacted as Title 10, USC, section 12206, and became effective on 1 October 1996. 

	d.  Notwithstanding the applicant's DD Form 214 and reassignments orders indicating transfer to the USAR Control Group (Reinforcement), there is no evidence the applicant was appointed as a Reserve officer and actually placed in the control group subsequent to his discharge in September 1990. 

	e.  Therefore, based on paragraph 1-9a(2) of Army Regulation 135-100, the applicant was reappointed in the highest grade previously held and credited with the service he performed in that grade.  As such, his DOR was adjusted to 
30 October 2007.  If the applicant is able to present proof of his appointment as a Reserve officer after his discharge from the Army in 1990, his DOR should be recalculated. 

10.  Subsequent to this OCLL letter, by letter, the applicant contended that the response from HRC was inadequate and that he did not receive the proper credit for all his previous commissioned service.  His current record gives him credit for just over 4 years.  Yet, his records show his initial mandatory service obligation was completed on 27 May 1994, some 8 years after commissioning and nearly
4 years after his release from active duty in September 1990.  It is therefore reasonable to expect that he remained in an inactive Reserve duty until the end of 2001.  As such, he now requests the Board award him 14 years of commissioned service and reappointment as a MAJ instead of 1LT.

11.  Army Regulation 635-100 provides the authority for the separation of commissioned and warrant officers from the Active Army.  Paragraph 3-49 of the version of this regulation in effect at the time provided for involuntary release from active duty.  Sub-paragraph 3-49g states when budgetary or authorization limitations require a reduction of officer strength, a Department of the Army Active Duty Board (DAADB) will be convened to determine which officers will be released from active duty.  The CG, PERSCOM, The Judge Advocate General, Chief of Chaplains, or any of these offices, using prescribed criteria may be required to forward officer records, without recommendation, for consideration by the Board.  Officers designated for release under this paragraph are not considered ineffective or substandard in duty performance.  Their release is dictated by the needs of the Service. 


12.  Army Regulation 635-5 (Separation Documents) states the DD Form 214 is a summary of a Soldier’s most recent period of continuous active duty.  Table 2-2 (Reference List to be Used to Determine Appropriate Entry for Item 9 on the    DD Form 214) states when the type of separation is discharge (including resignation of RA commissioned officers), and the service member will accept a USAR appointment, the entry in item 9 will be "USAR Control Group (Annual Training or Reinforcement)” as appropriate.

13.  Title 10, USC, section 12206 (Commissioned officers: appointment of former commissioned officers) states under regulations prescribed by the Secretary of Defense, a person who is a former commissioned officer may, if otherwise qualified, be appointed as a Reserve officer of the Army, Navy, Air Force, or Marine Corps.  A person so appointed may be placed on the Reserve active-status list of that armed force in the grade equivalent to the permanent regular or reserve grade, and in the same competitive category, in which the person previously served satisfactorily on active duty or in an active status; and may be credited for the purpose of determining date of DOR under section 741(d) of this title with service in grade equal to that held by that person when discharged or separated.

12.  DODI 1312.03 (Service Credit for Commissioned Officers) states that it is DOD policy that the award of service credit to any person appointed, assigned, or designated as a commissioned officer in an officer category shall be equitably determined to establish an appropriate appointment grade and DOR relative to other officers in the same competitive category.  Paragraph 6.1.1 (prior active commissioned service credit) states credit for prior service as a commissioned officer may not exceed 1 year for each year of the following:   

	a.  6.1.1.1. Active duty commissioned service or commissioned service in an active status (except as a commissioned warrant officer) including periods of active duty for training. 

	b.  6.1.1.3. Commissioned service (except as a commissioned warrant officer) in an active status, but not on active duty, for persons appointed as Reserve commissioned officers.  

13.  Army Regulation 135-100 establishes responsibility and provides procedures for the appointment of commissioned and warrant officers in the Reserve Components of the Army.  Paragraph 1-9(a) states if otherwise qualified, commissioned officer applicants may be appointed in grades indicated that subject to the requirements of this regulation, officers and former officers will be appointed in the highest grade to which entitled under 10 USC 3359, (see Table 1–2).  Table 1-2 of Army Regulation 135-100 shows the grade on appointment and required years of service: 

Commissioned Service Credit
Appointment Grade
Less than 3 years
2LT
3 years or more but less than 7 years 
1LT
7 year or more but less than 14 years 
CPT
14 year or more but less than 21 years 
MAJ
DISCUSSION AND CONCLUSIONS:

1.  The applicant raises several issues, including transfer to the IRR, consideration by an RCSB, appropriate constructive service credit, and appropriate appointment grade. 

	a.  With respect to the transfer to the IRR, the applicant was discharged on 15 September 1990 with no military service obligation.  He was not released from active duty and transferred to the IRR.  His discharge orders stipulated that the oath of office for USAR appointment would be executed prior to his discharge.  His DD Form 214 listed the USAR Control Group (Reinforcement) in item 9 only because the governing regulation stated that when the type of separation is discharge (including resignation of RA commissioned officers), and the service member will accept a USAR appointment, the entry in item 9 will be "USAR Control Group (Annual Training or Reinforcement)” as appropriate.

	b.  There is no evidence in his records and he did not provide any evidence that shows he was appointed as a Reserve commissioned officer or executed an oath of office prior to or subsequent to his discharge.  More importantly, he did not perform any active or inactive duty after his discharge.  Furthermore, he did not raise this issue during Operation Desert Storm in 1991 or during 2001/2003, when so many Reserve units and Individual Ready Reservists were being activated for deployment.  He also did not raise this issue during 1991/1992, when he contends he should have been considered for promotion. 

	c.  With respect to his promotion consideration by an RCSB, since the applicant was discharged and had no military status, he could not have been considered for promotion to any grade. 

	d.  With respect to the constructive service credit, he completed 4 years,
3 months, and 18 days of creditable active duty.  The purpose of constructive service credit is to provide grade and DOR comparability.  He was appointed and executed an oath of office on 17 August 2010.  His DOR was adjusted to 
30 October 2007 to account for his prior 1LT commissioned service.  
	e.  Having completed 3 years or more but less than 7 years of prior active commissioned service, according to Table 1-2 of Army Regulation 135-100, the appropriate appointment grade is 1LT.  He was appointed as such. 

2.  The applicant did not provide any evidence to support his contention that he is entitled to more constructive service credit or reappointment in a higher grade.  In view of the foregoing evidence, he is not entitled to the requested relief.

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)                                         AR20110010028



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ABCMR Record of Proceedings (cont)                                         AR20110010028



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