IN THE CASE OF:	  

		BOARD DATE:	  2 June 2011

		DOCKET NUMBER:  AR20110010280 


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 his U.S. Army Reserve (USAR) appointment date as 16 June 2007 vice 7 January 2011 and his date of rank (DOR) to captain (CPT) as 1 December 2003.

2.  The applicant states he was discharged from the Regular Army (RA) in the rank of CPT on 15 June 2007 and he was transferred to the USAR Control Group in the same grade effective 16 June 2007.  His unqualified resignation included a request for a Reserve commission as his military service obligation (MSO) was not until 19 January 2008 and he was required by law to serve the remainder of his MSO as a member of the Reserve component.  He also states he executed an oath of office as a Reserve commissioned officer on 16 June 2007.  The Army erred by not placing his name on a scroll for the Reserve appointment he accepted on 16 June 2007.  When the oversight was realized by the U.S. Army Human Resources Command (HRC), his name was placed on a scroll and approved by the Secretary of Defense on 7 January 2011 and he executed an oath of office on 7 April 2011 with an appointment date effective 7 January 2011.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Three DA Forms 71 (Oath of Office -  Military Personnel)
* Two appointment orders
* Six orders
* Five DA Forms 67-9 (Officer Evaluation Report)

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was appointed as a USAR Signal Corps (SC) second lieutenant and executed an oath of office on 24 September 2001 with concurrent call to active duty.  He served in staff and leadership positions and he attained the rank/grade of CPT/O-3 in the RA on 1 December 2003.  

2.  He was honorably discharged on 15 June 2007.  He completed 5 years, 8 months, and 22 days of creditable active service.

3.  He was appointed as a USAR SC CPT on 16 June 2007 and executed an oath of office on the same date.  He was assigned to USAR Control Group (Reinforcement).

4.  During the period 16 June 2007 through 6 January 2011, he served in several Reserve units in various capacities.  He served on active duty from 17 November 2008 through 14 January 2011 and his last assignment was with the 1st Signal Center, Fort Belvoir, VA.

5.  In December 2010, HRC found that due to an administrative error the applicant's unit had not processed his Reserve appointment properly and his appointment and oath of office were found to be invalid and he had to be reappointed.

6.  Subsequently, he was issued an appointment memorandum, dated 7 January 2011, indicating his reappointment in the USAR, SC, as a CPT, with an acceptance date of 7 April 2011 and effective date of 7 January 2011.  The appointment memorandum stated that his appointment was approved by the Secretary of Defense on 7 January 2011.  This appointment would result in his DOR to CPT being adjusted to his permanent Reserve appointment date of 7 January 2011 and his period of break in service reflected as from 16 June 2007 to 6 January 2011.

7.  In the processing of this case, on 5 May 2011, an advisory opinion was received from an official in the Officer Division, Office of the Deputy Chief of Staff, G-1.  The advisory official recommended approval of the applicant's request to adjust his initial appointment date to 16 June 2007 with a DOR of 1 December 2003.  The advisory official stated the applicant acted in good faith in compliance with law and policy; the breakdown in the appointment process was on the part of the Army.  Due to an administrative error the applicant's Reserve appointment was not processed in accordance with the law and published Army guidance at the time of the applicant's discharge from the Army.  There was no evidence he had been submitted for a Reserve commission in conjunction with his discharge from the RA in June 2007.  The Secretary of Defense approved the scroll with the applicant's name on 7 January 2011 and the applicant executed an oath of office on 7 April 2011 with an appointment date effective 7 January 2011.  

8.  Army Regulation 135-100 (Appointment of Commissioned and Warrant Officers of the Army) prescribes the policies and procedures for the appointment of commissioned officers in the USAR.  This regulation specifies that a commissioned officer of a regular component who is discharged or who resigned may be appointed/reappointed as a Reserve commissioned officer in the grade, with time in grade for promotion purposes equal to the amount of time in the permanent grade held as a regular officer at the time of discharge.

9.  Executive Order 13358, Assignment of Functions Relating to Certain Appointments, Promotions, and Commissions in the Armed Forces, dated 30 September 2004, states the White House delegated the authority of the President to appoint officers in the USAR to the Secretary of Defense with no further sub-delegation authorized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was discharged from the RA on 15 June 2007.  He was appointed as a USAR officer on 16 June 2007.  However, this appointment was subsequently found to be invalid through no fault of his own because he was never added to the scroll.

2.  The evidence of record also shows the applicant was promoted to CPT in the RA effective 1 December 2003.  Due to circumstances beyond his control, written approval and inclusion of his name on an approved scroll was not received until 7 January 2011, almost 4 years after he entered the USAR.  This delay denied him equitable reappointment with an effective date of 16 June 2007 and a DOR of 1 December 2003.

3.  It appears he was caught up in changing business processes that brought individuals from the active component to the Reserve components, i.e., requirements from scrolling and documentation were changing during that period.  Based on the circumstances presented and as a matter of equity in this case, his records should be corrected to show he was appointed in the USAR, as a CPT in the SC, effective 16 June 2007, with a DOR of 1 December 2003, and with no 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 the applicant was appointed in the USAR, SC, as a CPT, effective 16 June 2007, with a DOR of 1 December 2003, and with no break in service.



      ____________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)                                         AR20110010280





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ABCMR Record of Proceedings (cont)                                         AR20110010280



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