IN THE CASE OF:	  

		BOARD DATE:  8 November 2012

		DOCKET NUMBER:  AR20120003313 


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, removal of his break-in-service from 30 September 2009 through 5 October 2009 during his transition from the Regular Army to the U.S. Army Reserve (USAR) from his records.

2.  The applicant states he did not have a break-in-service when he transitioned from active duty to the USAR.  He states he contracted into the USAR on 18 August 2009 as part of his clearing process before separating from active duty on 29 September 2009.  All supporting documentation clearly shows there should be no break-in-service or change in date of rank (DOR) in his Reserve records.  Mrs. H-----, U.S. Army Human Resources Command (HRC) appointments, informed him that she believed the reason for the incorrect date on his records was due to a delay of his name appearing on a scroll list.

3.  The applicant provides:

* two pages of an HRC web portal printout
* two pages of explanation
* Order Number 050-072, issued by Headquarters, HRC, Alexandria, VA, dated 19 February 2009
* Officer Record Brief (ORB), dated 27 July 2009
* Orders 209-0160, issued by Headquarters, III Corps, Fort Hood, TX, dated 28 July 2009
* Orders 230-0203, issued by the same headquarters, dated 18 August 2009
* DA Form 5691-R (Request for Reserve Component Assignment Orders), dated 18 August 2009
* Army Reserve Deployment Stabilization Statement, dated 18 August 2009
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 29 September 2009
* DA Form 71 (Oath of Office - Military Personnel), dated 30 September 2009
* Memorandum for the applicant, issued by HRC, St. Louis, MO, subject:  Appointment as a Reserve Commissioned Officer of the Army, dated
6 October 2009
* DA Form 71, dated 6 October 2009
* DD Form 1559 (Inspector General Action Request), dated 19 October 2011
* Orders C-11-920168, issued by HRC, St. Louis, dated 4 November 2009
* HRC, Fort Knox, KY Inspector General findings letter, dated 16 November 201
* Orders C-12-922697, issued by the same headquarters, dated
16 December 2009

CONSIDERATION OF EVIDENCE:

1.  The applicant was promoted to the rank of captain in the Regular Army effective and with a DOR of 1 February 2009.

2.  He is currently serving in the USAR in the rank of captain.

3.  An HRC Inspector General letter stated that on 25 June 2009 the applicant tendered his unqualified resignation.

4.  Orders 209-0160, dated 28 July 2009, show he was to be discharged from active duty effective 29 September 2009 with assignment to the USAR Control Group (Individual Ready Reserve (IRR)).

5.  A DA Form 5691-R, dated 18 August 2009, shows he requested assignment to Company A, 301st Military Intelligence Battalion, Phoenix, AZ upon completion of his active service.

6.  Orders 230-0203, dated 18 August 2009, amended Orders 209-0160, by changing his assignment from the IRR to Company A, 301st Military Intelligence Battalion.


7.  He was honorably discharged on 29 September 2009 under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 3-5, by reason of miscellaneous, general reasons. The DD Form 214 he was issued at the time shows he completed 3 years, 8 months, and 11 days of net active service during this period.  It further shows he was transferred to Co A, 301st Military Intelligence Battalion, Phoenix, AZ.

8.  He submits a DA Form 71 showing he executed an Oath of Office as a Reserve Commissioned Officer on 30 September 2009.

9.  A second DA Form 71 shows he executed an Oath of Office as a Reserve Commissioned Officer on 6 October 2009.

10.  His appointment memorandum shows he was appointed in the U.S. Army Reserve on 6 October 2009 in the rank of captain.

11.  He submits a DD Form 1559 that shows he requested assistance from the Inspector General for removing and/or correcting documents from his interactive Personnel Electronic Records Management System (iPERMS) record and the HRC portal.

12.  Orders C-11-920168, dated 4 November 2009, assigned him to the USAR Control Group (Reinforcement), effective 6 October 2009, due to his appointment.  These orders show the entry "Released from:  NA [not applicable]," indicating he had no military status immediately prior to this assignment.

13.  An HRC Inspector General letter states the HRC Inspector General initiated a thorough inquiry into the applicant's request for assistance.  It was concluded that the applicant's unqualified resignation was processed properly and in a timely manner.  The applicant submitted an unqualified resignation request on 25 June 2009 electing not to be appointed in the USAR.  After HRC processed the applicant's initial request, additional documents were received indicating the applicant changed his election for appointment in the USAR.  His request was processed and he was approved on the 6 October 2009 scroll.  This was the cause of the applicant's break-in-service.  Furthermore, the applicant's retention officer assigned him to a USAR unit without being appointed or requesting appointment to the USAR in accordance with Title 10, U.S. Code, section 12203.  Because federal law mandates this, HRC has no authority to waive the break-in-service the applicant incurred.


14.  Orders C-12-922697, dated 16 December 2009, released him from the USAR Control Group (Reinforcement) and assigned him to Company A,
301st Military Intelligence Battalion, effective 7 October 2009.

15.  In the processing of this case two advisory opinions were obtained from HRC, Fort Knox.

	a.  The Chief, Reserve Appointments and Accessions Branch provided an advisory opinion, dated 5 March 2012.  The advisory official stated the action for resolution of the applicant's case partially fell within the branch's area of responsibility.  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 could be initiated.  The advisory official stated the applicant's appointment memorandum reflects the confirmed scroll approval date that resulted in the applicant having a break-in-service between
30 September 2009 and 6 October 2009.  He stated this discrepancy can be corrected by an Army Board for Correction of Military Records (ABCMR) decision directing a defacto appointment effective 30 September 2009 for the applicant.

	b.  The Chief, Officer Promotions Branch provided an advisory opinion, dated 6 March 2012.  The advisory official stated the applicant's DOR to captain of
6 February 2009 is correct and based upon existing regulatory requirements.  The basis for the applicant's DOR adjustment is established in the Assistant Secretary of the Army (Manpower and Reserve Affairs) Memorandum, subject: Implementation of DOR Adjustment Authority, dated 20 December 2002, and is based upon his break-in-service without continuous military service from 30 September 2009 through 5 October 2009.  The advisory official further opined that the command had no grounds to offer relief based upon the applicant's perceived hardship associated with his break in continuous service that was directly associated with the lengthy 60-90 day re-scrolling process and the applicant apparently changing his mind to pursue a Reserve commission within said re-scrolling window.  The 6-12 month submission window for active duty separations is directly associated with the lead time to process Reserve commissions, as required, and the requisition process as a force management tool.

16.  On 8 March 2012, the advisory opinions were forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  On 20 March 2012, he responded by asking the Board to adopt the favorable recommendation that the Board direct a defacto appointment to 30 September 2009 instead of the unfavorable recommendation of no relief.  He further asks the Board to correct his DOR back to his original active duty promotion date of
1 February 2009.
DISCUSSION AND CONCLUSIONS:

1.  The applicant was promoted to the rank of captain in the Regular Army effective and with a DOR of 1 February 2009.  His DOR was subsequently adjusted to 6 February 2009 due to a break-in-service.

2.  An HRC Inspector General letter indicated the applicant submitted an unqualified resignation request on 25 June 2009 electing not to be appointed in the USAR and that his unqualified resignation was processed properly and in a timely manner.  It further indicated after HRC processed the applicant's initial request, he changed his election for appointment in the USAR.  His request was processed and he was approved on the 6 October 2009 scroll resulting in his break-in-service.  Furthermore, the applicant's retention officer assigned him to a USAR unit without being appointed or requesting appointment to the USAR.

3.  The Chief, Reserve Appointments and Accessions Branch indicated that an ABCMR decision directing a defacto appointment effective 30 September 2009 would provide relief for the applicant in this case.  However, based on the Inspector General findings; the Chief, Officer Promotions Branch advisory opinion; and the evidence of record the delay in his Reserve commissioning was not the result of an error or injustice, rather it was the result of the applicant's delay in electing to pursue a Reserve commission.  As such, it is reasonable to presume that he would have received his Reserve commission early enough to have precluded his having a break-in-service had he made a timely election to pursue a Reserve commission, therefore, avoiding his break-in-service with an adjusted DOR of 6 February 2009.

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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)                                         AR20120003313



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ABCMR Record of Proceedings (cont)                                         AR20120003313



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