IN THE CASE OF:	  

		BOARD DATE:	  20 December 2012

		DOCKET NUMBER:  AR20120007947 


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:

	a.  his 1 July 2006 discharge from active duty be voided; and

	b.  his date of rank (DOR) be adjusted from 30 April 2009 to 1 January 2006.  

2.  The applicant states:

* His discharge on 1 July 2006 contradicts his mandatory service obligation (MSO) date
* He was supposed to be transferred into the Individual Ready Reserve (IRR) in order to complete the last 4 years of his 8-year service obligation in the U.S. Army Reserve (USAR) 

3.  The applicant provides his:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Promotion orders, dated 18 January 2006  

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed a second lieutenant in the USAR on 10 May 2002 with an MSO date of 9 May 2010.  He was ordered to active duty on 5 June 2002 with an active duty commitment of 4 years.  On an unknown date, he was appointed as an officer in the Regular Army (RA).     
2.  On 1 January 2006, he was promoted to captain with a DOR of 1 January 2006.  

3.  On 1 July 2006, he was honorably discharged for miscellaneous/general reasons under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 2-7.  His DD Form 214 shows he was discharged.  Item 9 (Command to Which Transferred) of his DD Form 214 shows he was transferred to the IRR.

4.  There is no evidence of record which shows he executed an oath of office on 2 July 2006.

5.  He was appointed a captain in the USAR on 30 October 2009 with a DOR of 30 April 2009.

6.  His U.S. Army Human Resource Command Chronological Statement of Retirement Points shows he had a break in service from 1 July 2006 to 
30 October 2009.

7.  Army Regulation 600-8-24 states an officer must serve in the Armed Forces until completion of statutory MSO.  Release from active duty under provisions of chapter 2 (Release from Active Duty of Reserve Component Commissioned and Warrant Officers) of this regulation does not terminate the 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 Regular Army status by operation of law. 

8.  Army Regulation 635-5 (Separation Documents) states when a Regular Army commissioned officer resigns and accepts a USAR appointment, then the entry, USAR Control Group, Annual Training or Reinforcement, as appropriate) will be entered in item 9 of the DD Form 214.

9.  Title 10, U.S. Code, section 12203(a) states appointments of Reserve officers in commissioned grades of lieutenant colonel or below, except commissioned warrant officers, shall be made by the President alone.

10.  Paragraph 6.1.3. of Department of Defense Instruction 1310.02 (Appointing Commissioned Officers) states all appointments of military officers (including all 


original appointments, and including appointment of officers who previously held a commission) shall be made by the Secretary of Defense based on Presidential delegations. 

11.  Title 10, U.S. Code, section 101(b)(10) states the term "original" with respect to the appointment of a member of the Armed Forces in a Regular or Reserve Component, refers to that member's most recent appointment in that component is neither a promotion or a demotion. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his discharge on 1 July 2006 contradicts his MSO and that he was supposed to be transferred to the IRR to complete his 8-year service obligation instead of being discharged.  

2.  Evidence shows the applicant:

* was appointed a second lieutenant in the USAR on 10 May 2002 with an MSO date of 9 May 2010
* entered active duty on 6 June 2002 with a 4-year active duty commitment
* was discharged on 1 July 2006
* was appointed a captain in the USAR on 30 October 2009 with a DOR of 
      30 April 2009 

3.  The governing regulation states:

* an officer must serve in the Armed Forces until completion of his statutory 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

4.  By virtue of his 8-year MSO, he should have been appointed in the IRR to complete his obligation.  For an unknown reason, the proper officials did not see that he was appointed prior to his discharge.  However, the applicant should have known when his DD Form 214 was prepared to show he was discharged but he had not yet received an appointment in the USAR that something was wrong.  His appointment would have required action by the Secretary of Defense in approving a scroll of officers including the applicant's name for appointment in that component.  Since an appointment is a Secretary of Defense action, and 


hence a Department of Defense (DOD) record/determination, the Army Board for Correction of Military Records (ABCMR) cannot change his date of appointment or void his 2006 discharge without granting him constructive credit for RA service beyond his discharge date.

5.  Transferring an officer from a Regular component to a Reserve component requires a new appointment of the officer.  By law, appointments of Reserve officers in commissioned grades of lieutenant colonel and below, except commissioned warrant officers, shall be made by the President alone.  This authority has been delegated by Executive orders to the Secretary of Defense and may not be delegated further.  The authority of the Secretary of Defense extends to all original appointments, including individuals who previously held a commission.  An original appointment of an officer in a Reserve component refers to that officer's most recent appointment in that component that is neither a promotion or demotion.

6.  The ABCMR, may correct any Army record when necessary and appropriate to correct and error or remove an injustice.  This authority does not extend to correcting the records of another service or DOD records.  Since an appointment of an officer is a DOD function, it falls outside of the purview of the ABCMR's corrective authority.  The ABCMR, may not, consequently, correct an officer's record to reflect an appointment date earlier than the date of the officer's actual appointment by the Secretary of Defense unless authorized under another provision of law.  No other law exists with respect to the applicant's case.  Accordingly, as there is no authority to change the applicant's appointment date of 30 April 2009 in the USAR.    

7.  Although he requests his 1 July 2006 discharge be voided, he was properly discharged from active duty on 1 July 2006 in accordance with the end of his     4-year active duty commitment and his request for resignation.  Therefore, there is insufficient evidence on which to base granting this request.

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)                                         AR20120007947



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ABCMR Record of Proceedings (cont)                                         AR20120007947



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