IN THE CASE OF:	  

		BOARD DATE:	  2 August 2012

		DOCKET NUMBER:  AR20110023688 


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 her record to show her permanent Reserve appointment date as 7 March 2011 vice 6 May 2011 with no break in service and she also requests reconsideration to captain by a DA special selection board (SSB). 

2.  She states after the September 2010 scroll for officer separations was lost and subsequently found in May 2011, it indicated she had a break in service; however, her last day on active duty was her first day as a Reservist.  She appeared before the captain’s promotion board in December 2010 but because of this error has not been promoted:

3.  She provides:

* DD Form 4/3 (Enlistment/Reenlistment Document – Armed Forces of the United States)
* DA form 71 (Oath of Office)
* DA Form 5691-R (Request for Reserve Component Assignment Orders)
* two memoranda

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show she initially enlisted in the Regular Army (RA) on 18 September 2007 and was discharged honorably on 5 March 2008 for the purpose of accepting a commission in the U.S. Army.  On 6 March 2008, she entered the Regular Army as a second lieutenant.  She was promoted to first lieutenant, effective 6 September 2009.  

2.  She was discharged on 6 March 2011 after completing a total of 3 years, 5 months, and 19 days of creditable active service.

3.  Her record contains a memorandum from the U.S. Human Resources Command, Fort Knox, KY dated 6 May 2011, which shows, effective the same date, she was appointed as a Reserve Commissioned Officer and accepted the appointment as a first lieutenant on 18 May 2011.

4.  In an advisory opinion, dated 23 January 2012, the Chief, Reserve Appointments and Accessions Branch, Human Resources Command, Fort Knox, KY, stated reference Executive Order 13358, Assignment of Functions Relating to Certain Appointments, Promotions, and Commissions in the Armed Forces, dated 30 September 1994, the White House had delegated authority to 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 into the USAR must be on a "scroll" approved and signed by the Secretary of Defense before an Oath of Office can be initiated.

5.  The advisory official also stated that the applicant was separated from active duty on 6 March 2011; however, her scroll approval for USAR approval was not received until 6 May 2011.  Therefore, her appointment memorandum reflects her approval date which resulted in the discrepancy between 7 March 2011 and 6 May 2011 break in service.  This discrepancy can be corrected by an official ABCMR decision directing a defacto appointment to 7 March 2011 for the applicant.  It was recommended the applicant's request be approved.

6.  On 3 February 2012, the applicant concurred with the advisory opinion.

7.  Army Regulation 135-100 (Army National Guard and Army Reserve 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.  



8.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes the policies and procedures for the promotion of Reserve and Army National Guard officers.  This regulation specifies that promotion reconsideration by an SSB may only be based on erroneous non-consideration or material error, which existed in the record at the time of consideration.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant served in the RA as a commissioned officer from 26 January 2008 until she was released from active duty as a first lieutenant on 6 March 2011.  She accepted assignment to the USAR effective 7 March 2011, however, she was not afforded the opportunity to complete an Oath of Office for appointment in the USAR until 18 May 2011.  Evidence of record shows she was not given "defacto status" for her break in service from 7 March 2011 to 6 May 2011.

2.  It appears she was not processed, pursuant to appointment policies, for appointment in the USAR on 7 March 2011, she was processed based on a recent ruling that the appointment memorandum could not be dated prior to the approval date of the scroll.  Even though she began serving in a Reserve status, written approval and inclusion of her name on a scroll signed (approved) by the Secretary of Defense was required.  

3.  Due to circumstances beyond her control, written approval and inclusion of her name on an approved scroll was not received until 6 May 2011, 2 months after she began serving with her Reserve unit.  This delay denied her immediate appointment with an effective date of 7 March 2011.  

4.  It appears that the applicant 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, her records should be corrected to show she was continued on active duty from 7 March 2011 to 5 May 2011 in an excess leave status, until the day prior to her appointment in the USAR, as a first lieutenant, effective 6 May 2011, with a date of rank of 6 September 2009.  

5.  Based on the correction to her records to show no break in service
it would be equitable to submit the applicant’s records to a duly constituted SSB for consideration to promotion to captain under the 2011 criteria.

6.  If the applicant is selected for promotion to captain by the SSB, her records should be further corrected by promoting her to captain and assigning the appropriate date of rank.

7.  In view of the foregoing, her records should be corrected as recommended below.

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:

   a.  showing the applicant remained on active duty for the period 7 March 2011 to 5 May 2011 in an excess leave status; 
   
   b.  showing the applicant was appointed in the U.S. Army Reserve, as a first lieutenant, effective 6 May 2011, with a date of rank of 6 September 2009, with no break in service; 

	c.  submitting her record to a duly-constituted SSB for promotion reconsideration to captain based on the fiscal year 2011 criteria;

	d.  if she is selected for promotion and she meets all other promotion criteria, correcting her records to show she met all the eligibility criteria for promotion effective the date of release of the applicable promotion selection board, 
promoting her to captain with the appropriate date of rank, and paying her any associated back pay and allowances as a result of the corrections; and 



	e.  if the applicant is not selected by a duly-constituted SSB, she should be so notified.



      _____________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)                                         AR20110023688





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ABCMR Record of Proceedings (cont)                                         AR20110023688



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