IN THE CASE OF:	  

		BOARD DATE:	  21 August 2012

		DOCKET NUMBER:  AR20120002360 


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 DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was discharged on 7 April 2010 or later in the rank/grade of captain (CPT)/O-3
* his DA Form 71 (Oath of Office - Military Personnel) to show he entered the U.S. Army Reserve (USAR) on 7 April 2010 or later in the rank/grade of CPT/O-3

2.  He states he scheduled his release from active duty (REFRAD) date of 31 March 2010 in early January 2010.  He was scheduled to be promoted to CPT/O-3 on 22 March 2010, exactly 18 months after his promotion to first lieutenant (1LT)/O-2.  However, due to the blizzards that struck the Washington, DC, metropolitan area in February 2010, much of the paperwork was delayed.  The official list of officers selected for promotion to CPT/O-3 was published by the U.S. Army Human Resources Command (HRC) on 6 April 2010.  He has worked with his current USAR unit's command G-1, who in turn worked with HRC and the USAR appointments branch to promote him to CPT and then back-date his promotion to 6 April 2010.  However, his request was denied because there was a break in service between his REFRAD and the publication of the promotion list.

3.  He provides:

* a self-authored statement
* a DD Form 214
* a page from the Fiscal Year (FY) 2010 Army CPT Selection Board Results
* two DA Forms 71 (Oath of Office)
* e-mail correspondence

CONSIDERATION OF EVIDENCE:

1.  On 22 March 2007, the applicant was appointed as a Regular Army (RA) second lieutenant/O-1 in the Military Intelligence (MI) branch following a period of enlisted service.

2.  Effective 22 September 2008, he was promoted to 1LT/O-2.  

3.  On 23 February 2010, Headquarters, III Corps and Fort Hood, Fort Hood, TX, issued Orders 054-0110 assigning him to the Fort Hood Transition Center for transition processing with a reporting date of 31 March 2010.  These orders show his date of discharge was to be 31 March 2010, and he was to be assigned to the USAR Control Group (Individual Ready Reserve).  

4.  On 22 March 2010, the same headquarters issued Orders 081-0100, which amended Orders 054-0110 to show he was to be assigned to Headquarters and Headquarters Company (HHC), 304th Civil Affairs Brigade, Philadelphia, PA.  

5.  His record includes a DD Form 214 for the period ending 31 March 2010 showing he was honorably discharged from the RA.  Item 6 (Reserve Obligation Termination Date) shows he was obligated to serve until 18 July 2014.  

6.  On 6 April 2010, the results of the FY 2010 CPT Army Competitive Category Selection Board were released.  He was selected for promotion with sequence number 1,314.  Military Personnel (MILPER) Message Number 10-104, issued on 7 April 2010, announced the promotion sequence.  Promotion sequence numbers 1,189 though 1,317 were to be promoted to CPT with a date of rank (DOR) and effective date of 1 April 2010.  

7.  On 9 April 2010, he took the Oath of Office as a Reserve commissioned officer.  A memorandum in his record confirms the Secretary of Defense approved his appointment as an MI 1LT in the USAR effective on this date.  

8.  On 1 March 2012, the results of the FY 2012 CPT Army Promotion List (Reserve Components) Selection Board were published.  He was selected and promoted to CPT/O-3 effective 15 February 2012.

9.  He provides e-mail correspondence showing he attempted to have his record corrected through his chain of command in 2011.  Due to the break in his appointment, he was denied promotion based on his selection by the FY 2010 CPT Army Competitive Category Selection Board and his record was submitted to the FY 2012 CPT Army Promotion List (Reserve Components) Selection Board.  

10.  On 17 April 2012, during the processing of this case, the Chief, Personnel Management Division, U.S. Army Reserve Command (USARC), provided an advisory opinion.  

	a.  The advisory official stated the applicant's USAR appointment as a 1LT could be made a de facto appointment, effective 1 April 2010, the day after his release from active duty.  Making this correction to his record would eliminate his break in service and make it possible to give him an earlier DOR for CPT.  

	b.  With approval of a de facto appointment, the Board could ratify Orders 054-110, as amended by Orders 081-0100, thereby establishing his assignment to the USAR.  HRC could then publish an appointment letter to effect the de facto date of 1 April 2010 and, if necessary, publish an order assigning him to HHC, 304th Civil Affairs Brigade effective 1 April 2010.  

	c.  Finally, HRC could publish a promotion order with a DOR effective the date of his assignment to a position in which promotion is authorized.  To do so, the applicant would have to provide a document showing he was assigned to a position authorized to be filled by a CPT or a higher grade.  An example of such a document would be the page of the Unit Manning Roster showing he was assigned in a position authorized to be filled by a CPT or higher grade.  

11.  On 18 April 2012, the applicant stated he concurred with the advisory opinion.

12.  The modified Table of Organization and Equipment (MTOE) in effect during FY 2010 for HHC, 304th Civil Affairs Brigade, shows the unit was authorized two MI officers:  one major (MAJ)/O-4 and one CPT/O-3.  The unit was also authorized one branch immaterial MAJ/O-4 and one Adjutant General Branch 1LT/O-2.

13.  Army Regulation 600-8-29 (Officer Promotions) prescribes policies and procedures governing promotion of Army commissioned and warrant officers on the active duty list.  It states HRC will remove from the promotion list those officers who are dropped from the rolls of the Army, separated, or retired before being promoted from the list without provisions for reinstatement on the list if they subsequently return to active duty.

14.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) provides policy for selecting and promoting commissioned officers of the USAR.  It states, in part:

	a.  An officer on the active duty list who has been selected for promotion but who has not been promoted by the time the officer transfers to the Reserve active-status list (RASL) in the same competitive category will be placed on an appropriate Reserve of the Army promotion list.  

   b.  The effective date of promotion and DOR will be the same as if the officer had been selected to for promotion to the same grade by a promotion board for RASL officers.  However, the Secretary of the Army may set the DOR if he or she determines an inequity in the foregoing procedure exists.

15.  Army Regulation 600-8-24 (Officer Transfers and Discharges) prescribes policies and procedures governing transfer and discharge of Army officer personnel.  It states, in part, an officer must serve in the Armed Forces until completion of his or her statutory military service obligation (MSO).  An officer has an 8–year MSO.  An officer who requests resignation before completing the 8–year MSO must agree to accept an indefinite appointment in the USAR to complete such service obligation.  The act of taking the Reserve officer’s oath by an Active Army officer is sufficient to simultaneously terminate the officer’s RA status by operation of law.

16.  Executive Order 13358 (Assignment of Functions Relating to Certain Appointments, Promotions, and Commissions in the Armed Forces), issued
28 September 2004, delegated the authority of the President of the United States 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.

17.  Army Regulation 600-8-10 (Leaves and Passes) defines excess leave as a nonchargeable absence without pay and allowances granted for emergencies or unusual circumstances or as otherwise specified in this regulation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests correction of his DD Form 214 to show he was discharged on 7 April 2010 or later in the rank/grade of CPT/O-3.  
2.  The evidence of record shows he was discharged from the RA on 31 March 2010.  For reasons not shown in the record, his appointment in the USAR was not approved by the Secretary of Defense until 9 April 2010.  This resulted in a break in his appointment which had the effect of removing him from a promotable status.  

3.  If not for the brief break, he would have been promoted to CPT/O-3, effective 1 April 2010, based on his selection by the FY 2010 CPT Army Competitive Category Selection Board.  

4.  In light of the available evidence, as a matter of equity, it would be appropriate to correct his record by:

* voiding his discharge from the RA on 31 March 2010
* placing him in an excess leave status from 1 to 8 April 2010
* promoting him to CPT/O-3, effective 1 April 2010
* discharging him from the RA, effective 8 April 2010
* amending his DD Form 214 to show he was discharged on 8 April 2010 in the rank grade of CPT/O-3

5.  He should receive any back pay and allowances he is entitled to as a result of these corrections.

6.  Although appointment authority has not been delegated below the Secretary of Defense, promotion authority is exercised by the Army.  Even though the applicant was appointed in the USAR as a 1LT by the Secretary of Defense, there is no provision of law or regulation that would prevent correction of Army records to show he actually held a higher grade from 1 April 2010 forward.  

7.  He has also requested correction of his DA Form 71 to show he entered the USAR on 7 April 2010 or later in the rank/grade of CPT/O-3.  This Board does not have the authority to change the date of an appointment approved by the Secretary of Defense.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X__ __  ___X____  ____X__  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was 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:

* voiding his discharge of 31 March 2010
* placing him in an excess leave status from 1 to 8 April 2010
* promoting him to CPT/O-3, effective 1 April 2010
* discharging him from the RA, effective 8 April 2010
* amending his DD Form 214 for the period ending 31 March 2010 to show he was discharged on 8 April 2010 in the rank/grade of CPT/O-3

2.  The Defense Finance and Accounting Service should be notified of the Board's determination and pay the applicant all back pay and allowances he is due as a result of these corrections.

3.  The Board further determined that 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 correction of his DA Form 71 to show he entered the USAR on 7 April 2010 or later in the rank/grade of CPT/O-3.



      _______ _   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)                                         AR20120002360



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ABCMR Record of Proceedings (cont)                                         AR20120002360



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