IN THE CASE OF:	   

		BOARD DATE:	  15 May 2012

		DOCKET NUMBER:  AR20110014883 


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 appointment date and date of rank (DOR) as a lieutenant colonel (LTC) in the U.S. Army Reserve (USAR) from 24 March 2011 to 12 November 2010
* payment of her Selected Reserve (SELRES) Special Pay Program bonus for her attendance at all battle assemblies (BA) despite not being in the USAR system
* transfer of her educational benefits (Montgomery GI Bill (MGIB)) and backdate the transfer to her original appointment date of 12 November 2010
* consideration for promotion to colonel (COL) by the 2011 board

2.  The applicant states that when she left active duty, she completed all the required documents to transition into the USAR.  She received her assignment orders to the 6250th U.S. Army Hospital (USAH), Joint Base Lewis-McChord, WA.  Unfortunately, officials at the U.S. Army Human Resources Command (HRC) failed to request a Reserve commission during her release from active duty process.  Due to this error, she did not transition immediately into the USAR and she was neither paid for her SELRES Special Pay Program nor for the BA's. 
Additionally, her time in grade toward promotion to COL has been adversely affected.

* she requested an unqualified resignation from the Regular Army effective July 2010; her orders were amended to September 2010
* she executed an oath of office on 12 November 2010 and reported to her USAR unit on 18 November 2010
* she continued training with her unit in January and February 2011 despite not being in the system
* she sought assistance from the Office of the Inspector General (IG) and she was finally told her name appeared on the scroll
* she was told to re-sign a new oath and the scroll was finally approved on 23 March 2011
* she was told she could not transfer her MGIB benefits to the 
Post-9/11 GI Bill until she was in the USAR
* since her transition to the USAR was delayed by 6 months, her request to transfer the benefits should be backdated to her original appointment date

3.  The applicant provides:

* letter from the Department of the Army IG (DAIG), dated 21 June 2011
* unqualified resignation letter
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* letter to the Medical Command (MEDCOM) IG
* DA Form 1559 (IG Action Request)
* Orders 200-0031 (discharge orders)
* Orders 253-0009 (amendment of discharge orders)
* two DA Forms 71 (Oath of Office – Military Personnel), dated 12 November 2010 and 24 March 2011
* Message 07-23, dated 15 May 2007, subject:  Implementation Guidance for 24-Month Deployment Stabilization for Active Component and Individual Ready Reserve to Reserve Component (RC) Transitions
* Deployment Stabilization Statement
* U.S. Army Recruiting Command (USAREC) Form 1166 (SELRES Special Pay Program Contract – Special Pay for SELRES Health Care Professionals in Critically-Short Wartime Specialties)
* two DA Forms 5691-R (Request for RC Assignment Orders
* memorandum, dated 2 September 2010, subject:  Incoming Transitioning Soldier
* email exchange with/from USAREC officials
* USAR printout
* DA Form 5690-R (RC Career Counselor Interview Record)
* DA Forms 1380 (Record of Individual Performance of Reserve Duty Training)
* March 2011 appointment memorandum and oath of office


CONSIDERATION OF EVIDENCE:

1.  Having prior service in the U.S. Navy, the applicant was appointed in the USAR and executed an oath of office on 31 October 1996.  She entered active duty on 17 May 1997 and served in a variety of assignments as a Medical Corps (MC) officer.  She served in Kuwait/Iraq from 28 March 2009 to 14 September 2009 during which she was promoted to LTC, Regular Army, on 17 May 2009.

2.  In 2010, she submitted a request for unqualified resignation from the Army under the provisions of chapter 3 of Army Regulation 600-8-24 (Officer Transfers and Discharges) to be effective 30 September 2010.  She indicated she desired appointment in the USAR.

3.  On 2 July 2010, HRC officials approved her separation effective 11 November 2010.  The approval message indicated the applicant requested a Reserve appointment and indicated the oath of office must be completed and forwarded to HRC.

4.  On 19 July 2010, Joint Base Garrison, Joint Base Lewis-McChord, published Orders 200-0031 ordering her discharge and assigning her to the U.S. Army Transition Center for separation processing effective 11 November 2010.

5.  On 2 September 2010, she submitted a DA Form 5691-R wherein she indicated she would accept assignment to the 6250th USAH, Fort Lewis, WA, in area of concentration 61F (Internist) upon her discharge from active duty.  She acknowledged she would be required to:

* report to her unit within 30 days after discharge and attend the next scheduled BA with her assigned unit
* attend one period of annual training each year of not less than 14 days unless excused by proper authority

6.  Also on 2 September 2010, an RC Career Counselor (RCCC) at Headquarters, RCCC, Fort Lewis (Joint Base Lewis-McChord), stated in a memorandum to the Commander, 6250th USAH, that the applicant had been contracted for assignment to his/her unit upon discharge and she should be assigned a sponsor.

7.  On 10 September 2010, Joint Base Garrison, Joint Base Lewis-McChord, published Orders 253-0009 further assigning her to the 6250th USAH, Fort Lewis, after discharge from active duty.

8.  She was honorably discharged from active duty in the rank of LTC on 11 November 2010.  She completed 13 years, 5 months, and 25 days of creditable active Army service during this period.

9.  On 12 November 2010, she executed an oath of office as a Reserve commissioned officer and she signed a deployment stabilization statement acknowledging she would be placed in a non-deployable status from the date of her assignment for a 24-month period.  She also signed a SELRES Special Pay Program Contract wherein she agreed that she would:

* be entitled to an annual special pay in the amount of $25,000.00 upon receiving assignment orders (anniversary date)
* be required to perform satisfactorily in the SELRES in accordance with Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures)
* incur an Army SELRES obligation of 3 years in specialty 61F

10.  She submitted various DA Forms 1380 that show she performed equivalent duties, training, or instruction on 8-9 January 2011 (4 retirement points), 5 February 2011 (2 retirement points), 5-6 March 2011 (4 retirement points), 19 March 2011 (2 retirement points), 26 March 2011 (2 retirement points), 2 April 2011 (2 retirement points), 6-8 May 2011 (6 retirement points), and 4-5 June 2011 (4 retirement points).

11.  On 11 March 2011, the applicant contended in a letter to the MEDCOM IG that HRC officials failed to expeditiously process her appointment in the USAR.

12.  On 23 March 2011, HRC issued her a memorandum of appointment as a Reserve commissioned officer of the Army effective 23 March 2011.  On 24 March 2011, she again executed an oath of office for appointment as a Reserve commissioned officer.

13.  On 17 June 2011, HRC issued Orders C-06-108942 appointing her to the USAR Control Group (Reinforcement) effective 23 March 2011.

14.  On 27 June 2011, an official at the DAIG stated in a letter to the applicant's Member of Congress that his inquiry into the issues determined that:

* the applicant completed all the requirements for an immediate transfer to the USAR
* HRC failed to request a Reserve appointment prior to her release from active duty on 11 November 2010
* HRC identified the oversight in March 2011 and she was scrolled on the USAR appointment order effective 23 March 2011
* she has experienced delays in the payment of her accession bonus and/or compensation for her unit BA's

15.  An advisory opinion was obtained from HRC on 20 September 2011 in the processing of this case.  HRC stated the discrepancy with respect to the appointment can be corrected by an official Army Board for Correction of Military Records (ABCMR) decision directing de facto appointment of 12 November 2010.

	a.  Reference Executive Order 13358 (Assignment of Functions Related to Certain Appointments, Promotion, and Commissions in the Armed Forces), dated 30 April 2004.  In this reference, the White House has 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, the directive was issued that all officers appointed in the USAR must be on a scroll approved and signed by the Secretary of Defense before an oath of office can be initiated.

	b.  The applicant was discharged on 11 November 2010; however, she was not identified as a candidate for USAR appointment at that time.  Once identified, her name was immediately submitted for scroll approval which was granted on 23 March 2011.

16.  Per Title 10, U.S. Code, section 1552, the ABCMR acts on behalf of the Secretary of the Army in correcting Army records.  This statute does not provide the Board with authority to correct a determination reserved under law to the Secretary of the Defense.

17.  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.

18.  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.

19.  Army Regulation 135-155 (Army National Guard and Army Reserve Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes the policies and procedures for the promotion of RC officers.

	a.  Paragraph 2-5 (Eligibility for Consideration) states to be eligible for consideration for promotion to the next higher grade, a USAR officer must have continuously performed service on either the Reserve Active Status List or the Active Duty List (or a combination of both lists) during the 1-year period ending on the convening date of the promotion board and must meet the time-in-grade requirements in tables 2-1 or 2-3, as appropriate.  USAR officers will be considered for promotion in their competitive category only.  While on a promotion list resulting from a prior mandatory or position vacancy promotion board or approved for Federal recognition in the higher grade and nominated for Reserve promotion on that basis, an officer may not be considered for promotion by a subsequent mandatory or position vacancy promotion board.

	b.  Table 2-1 (Time-in-Grade Requirements) states for promotion from LTC to COL, the minimum time-in-grade requirement is 3 years and the maximum time-in-grade requirement is announced annually and is normally 5 years, subject to the needs of the Army.

DISCUSSION AND CONCLUSIONS:

1.  The applicant served on active duty from 17 May 1997 to 11 November 2010. 
In connection with her request for resignation, she applied for and accepted assignment to a troop program unit in the USAR.  Accordingly, she executed an oath of office for appointment in the USAR the day after her discharge from active duty.

2.  It appears she was never placed on the scroll when she submitted her discharge packet even though she had a reserve vacancy and her packet was processed by HRC.  The error was discovered in March 2011 and at that time her name was submitted for scroll approval.  Based on the executive order, appointment could not be issued until scroll approval was received.

3.  All military officer appointments under Title 10, U.S. Code, section 12203, in the Reserve of the Army not previously approved by 30 June 2005, including original appointments, shall also be submitted to the Secretary of Defense.  The scroll is issued monthly.  Scrolls take about 90 to 120 days to be approved by the Secretary of Defense due to the fact that the lists are processed through multiple offices before being approved by the Secretary of Defense.

4.  Nevertheless, it is clear that administrative errors were committed in the processing of her appointment.  It is equally clear that the administrative errors in the processing of her appointment caused the applicant to be penalized for an action that was beyond her control.  She should not be penalized by HRC's failure to act.

5.  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.  However, the ABCMR does have the authority to amend appointment and assignment orders of Army officers.

6.  The applicant's appointment memorandum reflects a discrepancy between 12 November 2010 and 23 March 2011 and erroneously indicates a break in service.  As a matter of equity, the applicant’s records should be corrected to show she remained on active duty in the Regular Army until 23 March 2011, the day before she signed her oath of office for appointment as a Reserve commissioned officer, with entitlement to active duty back pay and allowances as a result of this correction.

7.  The above correction means her 24 March 2011 USAR appointment date remains valid insofar as her MGIB request is concerned. 

8.  With respect to the promotion consideration, the minimum time-in-grade requirement for promotion to COL is 3 years in the lower grade.  The applicant's DOR as an LTC is 17 May 2009.  The earliest she would be eligible for promotion consideration to COL is 17 May 2012.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x___  ____x___  ____x___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

* showing she was retained on active duty in the Regular Army until honorably discharged on 23 March 2011
* paying her any and all due active duty back pay and allowances, minus any possible offsets, as a result of this correction
* showing she was appointed in the USAR effective 24 March 2011 and signed a SELRES Special Pay Program Contract at that time wherein she agreed that she would

* be entitled to an annual special pay in the amount of $25,000 upon receiving assignment orders (anniversary date)
* be required to perform satisfactorily in the SELRES in accordance with Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures)
* incur an Army SELRES obligation of 3 years in specialty 61F

* sending her records to the first COL promotion board/special selection board for which she is eligible based upon a USAR appointment date of 24 March 2011, if appropriate

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to backdating her appointment date and date of rank as an LTC in the USAR to 12 November 2010, payment of back pay and allowances for her unit battle assemblies, and transferring her MGIB benefits retroactive to 12 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)                                         AR20110014883



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ABCMR Record of Proceedings (cont)                                         AR20110014883



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