IN THE CASE OF:	  

		BOARD DATE:	  31 January 2013

		DOCKET NUMBER:  AR20120006335 


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 as follows:

* Reinstatement to active duty under the original Selective Continuation (SELCON) Agreement
* Correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was transferred to the U.S. Army Reserve (USAR) Control Group (Individual Ready Reserve (IRR))
* Elimination of any break in service
* Promotion to major (MAJ)
* Credit of an appropriate number of retirement points to make a good year in 2011

2.  The applicant states:

	a.  The delay in affiliation with the IRR was due to failure of local Reserve Component (RC) career counselors to complete the action.  RC career counselors failed to disclose his correct and complete information for eligibility for continued service.  This adversely affected his ability to make an informed decision to stay or leave the military.  During the time to accept the SELCON, he was considering whether he could continue his service in the IRR with no break.  He was assured that he could.  As such, he decided to get out and continue as an IRR Soldier.  

	b.  He declined SELCON on 13 May 2010 and received a signed paper from the RC counselor on 25 May 2010 stating he was eligible for continued service.  He also signed papers indicating he was willing to join the IRR.  He was given a post-dated DA Form 71 (Oath of Office - Military Personnel) and instructed he would receive a packet after discharge, requiring a signed DA Form 71.  

	c.  During his pre-separation briefing, he considered Active Duty for Operational Support (ADOS) jobs listed as available to members of the IRR and other places for his rank and skill set.  He was informed that he needed to be scrolled into the IRR.  He had heard enough about the scrolling issue and went back to the counselors to verify if he were on track to be scrolled.  The remedy, he was told, was to scroll him on 12 August 2010. 

	d.  After discharge, he found employment in a firm as a financial advisor, beginning on 31 January 2011.  After serving with this firm, he received a government credit card.  This led him to believe he had been scrolled.  He then learned that prior to leaving the active Army, he had to have kept current on his flight physical.  He called the Aviation branch to arrange for a physical but found out he had been discharged. 

	e.  Had he known he was ineligible for continued service in the USAR without a waiver, he would not have declined the SELCON.  Had he been scrolled, he would have been able to earn retirement points and be promoted to MAJ. 

3.  The applicant provides:

* Agreement to Join the Ready Reserve
* DA Form 5690-R (Reserve Components Career Counselor Interview Record)
* DA Form 71
* DD Form 214
* SELCON Memorandum
* Acknowledgement of SELCON 

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service, the applicant's records show he was appointed as an aviation Reserve commissioned officer and executed an oath of office on 21 April 2000.

2.  He entered active duty on 21 June 2000.  He served in a variety of stateside assignments and he attained the rank of captain (CPT) on 1 November 2003.  He accepted a Regular Army appointment on an unknown date.

3.  On 29 March 2010, by memorandum, the Director of Officer Personnel Management, U.S. Army Human Resources Command (HRC) notified the applicant that:

	a.  He had been considered for promotion to MAJ by the Fiscal Year 2010 Major Army, Maneuver, Fires & Effects, Operations Support, and Force Sustainment Competitive Categories Promotion Selection Board but he was not selected for promotion.  

	b.  This was his second non-selection but a SELCON board had recommended him for selective continuation for an additional 3 years in the current grade.  

	c.  If he declined continuation, by law he must separate from the Army no later than the seventh month (October 2010) after approval of the promotion board report (March 2010).

4.  On 13 May 2010, the applicant acknowledged receipt of the SELCON memorandum.  He declined continuation on active duty and indicated he desired an appointment in the USAR.  

5.  On 25 May 2010, he completed an Agreement to Join the Ready Reserve. The agreement was authenticated by an RC career counselor.

6.  Prior to his discharge, he was interviewed by an RC career counselor on 12 August 2010.  The resulting DA Form 5690 shows the entries "wants IRR assignment" and "request MSG (master sergeant) Axxxx to scroll approve on 12 Aug 10." 

7.  He was honorably discharged from active duty on 1 October 2010.  His DD Form 214 shows he completed 10 years, 3 months, and 1 day of creditable active service.  Additionally, it shows in item 9 (Command to Which Transferred) the entry "N/A."

8.  On 2 October 2010, he executed an oath of office.  

9.  It is unclear if and when the applicant was scrolled.

10.  On 15 November 2011, HRC issued him an appointment memorandum appointing him as a Reserve commissioned officer in the rank of CPT effective 15 November 2011.  

11.  On 4 January 2012, HRC published Orders C-01-200105 appointing him as a Reserve commissioned officer effective 15 November 2011. 

12.  An advisory opinion was obtained on 12 June 2012 in the processing of this case.  An HRC official restated the facts of the case but did not opine.  The official stated if the Board ruled in his favor and eliminates the break in service, he would receive the requisite 15 retirement points that all Soldiers receive for Reserve membership.  He could not be awarded other retirement points because he did not perform any active or inactive duty between the date of discharge (1 October 2010) and the date of accession (15 November 2011).  

13.  In response to the advisory opinion, the applicant provided the following email: 

	a.  He believes where HRC failed in the SELCON agreement was in giving him enough information to make an informed decision.  He was involved in a deployment prior to getting his SELCON agreement and had very little time to gather information after receipt of the memorandum.  He turned to other subject matter experts to get information to help him make a decision.  He looked for full time jobs available to members of the IRR and lined up several jobs that were very interested in bringing him on.  He turned to the RC career counselors; however, they also failed to inform him appropriately. 

	b.  In addition, they didn't fulfill the promised action of getting him transferred to the IRR.  The key piece of information that would have made all the difference in making his decision to accept SELCON versus declining it as he did - which should have been in bold print in the Declination block- "ALL TWO TIME PASS OVERs FOR PROMOTION ARE INELIGIBLE FOR CONTINUED SERVICE IN THE MILITARY IN ANY CAPACITY WITHOUT A WAIVER."  He was finally given this information when he was trying to fix what he thought was an erroneous discharge. 

	c.  He was told by an official at the accession branch that he was discharged appropriately and he needed to request a waiver if he wanted to serve in the Reserves.  He submitted his request for a waiver to the official among other required actions and came back into the USAR as desired, but only after considerable consternation, difficult work and getting to the right subject matter expert at HRC.  He missed a year CO-ADOS tour and as an Individual Mobilization Augmentee (IMA) opportunity he was lining up at NGIC (unknown acronym) as a result of the problem.  No one can know what the future holds, but if he could see the future and had seen this future--he would have accepted SELCON. 

	d.  The Board might be wondering why it took so long for him to fix the problem.  He was frustrated with what he thought was simply a delay in getting scrolled, lost access to Army Knowledge Online (AKO) (making it much more difficult to communicate in Army channels), had to look for civilian employment, started a new job which involved extensive training, and was ultimately barking up the wrong tree when he was trying to fix the problem.  He also received a Government travel card sometime in February or March 2011 which led him to believe he had finally been scrolled into the Reserves, but by that time he was deep in training as a financial advisor.  After he had time to come up for air, about 2-3 months later, he discovered he had actually been discharged when he called to schedule a flight physical (something he learned he needed to do from talking to the Aviation Reserve career manager prior to making his decision to decline SELCON). Needless to say it was a long difficult task to finally get to the bottom of this issue.

	e.  He did not get access to AKO until early May 2012 (another unrelated problem he had to work hard to solve)-this finally gave him access to essential information such as ADOS tours on the Tour of Duty site and IMA vacancies available only on the HRC site.  He had found an intelligence job at Northern Command (NORTHCO) as an IMA Soldier and he is currently on short term   OP-ADOS orders until the end of Fiscal Year 2012, which is good.  However, it doesn't make up for all the time lost that he could have been on CO-ADOS orders with NGIC, serving as an IMA Soldier with them or the time, had he been properly informed, he would have accrued under the SELCON agreement--which he would have accepted.  He sees these failures by HRC and the career counselors as tantamount to negligence resulting in hardship to him and his family.  He can never go back and reclaim the time and money lost, but the Army can correct the issues that brought about this hardship so it doesn't happen to other Soldiers and allow him to return to active duty as a gesture of good will to help make things right.

	f.  As he said, he can't go back and change what's happened, but he assures the Board it was his intention, at a minimum, to get the points needed for a good retirement year had he been transferred to the IRR as promised.  In addition, he would have done what was needed to prepare his packet for the promotion board had he been transferred to the IRR on the date indicated on his paperwork.  So if the break in service is eliminated, he thinks it appropriate to be promoted -- if he would have been based on board results for that year and he also thinks it appropriate he be given the minimum points he would have obtained for a good year had he been transferred to the IRR as requested and as promised by the career counselors.  Obviously, there was no way for him to earn the points while he was discharged, but he would have if he had been transferred to the IRR immediately after his discharge.
14.  Per Title 10, U.S. Code, section 1552, the Army Board for Correction of Military Records 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.

15.  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.

16.  Title 10, U.S. Code, section 632, states except for an officer of the Navy and Marine Corps who is an officer designated for limited duty (to whom section 5596(e) or 6383 of this title applies) and except as provided under section 637(a) of this title, each officer of the Army, Air Force, or Marine Corps on the active-duty list who holds the grade of captain or major, and each officer of the Navy on the active-duty list who holds the grade of lieutenant or lieutenant commander, who has failed of selection for promotion to the next higher grade for the second time and whose name is not on a list of officers recommended for promotion to the next higher grade shall be discharged not later than the first day of the seventh month after the month in which the President approves the report of the board which considered the officer for the second time.

17.  Title 10, U.S. Code, section 637 states an officer who is selected for continuation on active duty under this subsection but declines to continue on active duty shall be discharged, retired, or retained on active duty, as appropriate, in accordance with section 632 of this title.

18.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It establishes standardized policy for preparing and distributing the DD Form 214.  The entry in item 9 is determined by Table 2-1.  This table states when a Regular Army officer is discharged and the officer accepts a USAR appointment, the entry in item 9 reflects the USAR Control Group (Annual Training) or (Reinforcement (IRR)). 

19.  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.
20.  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 the minimum years in the lower grade for promotion from CPT to MAJ is 4 years and the maximum years in the lower grade for promotion from CPT to MAJ is 7 years.  

21.  Army Regulation 135-155 states that promotion reconsideration by a special selection board (SSB) may only be based on erroneous non-consideration or material error, which existed in the record at the time of consideration.  Material error in this context is one or more errors of such a nature that, in the judgment of the reviewing official (or body), it caused an individual’s non-selection by a promotion board and, that had such error(s) been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion.  The regulation also provides that boards are not required to divulge the proceedings or the reason(s) for non-selection, except where an individual is not qualified due to non-completion of required civilian and/or military schooling.

DISCUSSION AND CONCLUSIONS:

1.  The applicant served on active duty from 21 June 2000 to 1 October 2010.  He was twice considered but not selected for promotion to MAJ.  He was given an opportunity to continue his active service but he elected not to do so.  As required by law, he was honorably discharged from active duty on 1 October 2010.  The law prohibits reinstatement of a twice non-selected officer to active duty.  Therefore, his desire to be reinstated to active duty is not supported and this portion of his request is denied. 

2.  His DD Form 214 listed the entry "NA" in the block titled "Command to Which Transferred."  However, prior to his discharge, he requested a transfer to the IRR and he also executed an oath of office, indicating his acceptance of a USAR appointment, on 2 October 2010.  By regulation, when a Regular Army officer is discharged and the officer accepts a USAR appointment, the entry in item 9 reflects the USAR Control Group (Annual Training) or (Reinforcement (IRR)).  Therefore, the applicant is entitled to correction of his DD Form 214 to show the entry "USAR Control Group (Reinforcement), St. Louis, MO" in item 9.

3.  With respect to the scroll:

	a.  The applicant was interviewed by the RC career counselors and he indicated his desire to transfer to the IRR.  He also executed an oath of office for appointment as a Reserve commissioned officer on 2 October 2010, one day after his discharge from active duty.  

	b.  His appointment packet should have been staffed and processed for scrolling by the Secretary of Defense.  For unknown reasons, possibly due to an administrative oversight, this did not happen.  The error was discovered in November 2011 and at that time his name was submitted for scroll approval.  Based on the executive order, appointment could not be issued until scroll approval was received.  

	c.  Scrolling is a function of the Secretary of Defense and it is not within the purview of this Board.  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.  As such, an adjustment to his date of appointment from 15 November 2011 (current date) to 2 October 2010 (desired date) is not within the purview of this Board. 

	d.  Nevertheless, it is clear that administrative errors were committed in the processing of his appointment.  It is equally clear that the administrative errors in the processing of his appointment caused the applicant to be penalized for an action that was beyond his control.  

	e.  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.  


4.  With respect to the promotion issue, the Board is not a promotion board.  The applicant was never selected for promotion to MAJ.  Additionally, although his date of rank to CPT is 1 November 2003, and would have been eligible for promotion consideration to MAJ by a mandatory board upon completing the maximum years in grade (7 years) on 1 November 2010, by regulation he would need to be on the RASL for one year before he can be considered.  He does not qualify for the requested relief because he did not satisfy the one-year RASL rule. 

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)                                         AR20120006335





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ABCMR Record of Proceedings (cont)                                         AR20120006335



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