BOARD DATE:	  8 August 2013

		DOCKET NUMBER:  AR20120017902 


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 his appointment date as a chief warrant officer four (CW4) in the U.S. Army Reserve (USAR) from 8 June 2011 to 1 March 2011.

2.  He states he believes the break in service he received from 1 March 2011 through 7 June 2011 was an unjust act and was not properly handled in a manner that represents the values and conduct of the U.S. Army.  He attributes this belief to the fact that the U.S. Army instituted a policy requiring all officers/warrant officers to be placed on a scroll before there were any Military Personnel (MILPER) messages, Army regulations or guidance in place for Soldiers who were in a transitional phase from Active Component (AC) to Reserve Component (RC) under authorized procedures and official orders.  He contends the policy also did not address how to handle Soldiers who already had official orders and/or were on transition leave at the time the policy was placed into effect.  He states he was in a transition leave status from 9 December 2010 through 28 February 2011, reported to his USAR unit on 1 March 2011, and did not discover that his records had been sent to archives as if he was completely discharged from the Army rather than transferred to the USAR without a break in service.

3.  He provides the following:

* three orders
* DA Form 71 (Oath of Office - Military Personnel)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DA Form 5691-R (Request for RC Assignment Orders)
* USAR Deployment Stabilization Statement
* USAR Form 143-R (Executive Correspondence Non-Disclosure Policy Acknowledgement Statement)
* DA Form 4186 (Medical Recommendation for Flying Duty)
* DD Form 2058 (State of Legal Residence Certificate)
* DA Form 7120-R (Commander's Task List)
* two Records of Training
* six pages of email correspondence

CONSIDERATION OF EVIDENCE:

1.  Following periods of enlisted service in the Air National Guard and the Regular Army (RA), the applicant was appointed as a warrant officer one on 2 August 1990 with a concurrent call to active duty.  He was subsequently promoted to chief warrant officer two on 2 August 1992, chief warrant officer three on 15 October 1999.  On 10 June 2004, he was released from active duty and transferred to the USAR.  He was promoted to CW4 on 15 October 2005.  He was ordered to active duty in the rank of CW4 on 30 April 2006.

2.  On 16 November 2010, Installation Management Command - Europe (IMCOM-E), Wiesbaden Transition Center published Orders 320-0001 which show the applicant was reassigned to the U.S. Army Transition point for transition processing with a discharge date of 28 February 2011.

3.  A DA Form 5691-R, dated 9 December 2010, shows the applicant voluntarily accepted an assignment with Company B (Minus (-)), 2nd Battalion, 228th Aviation Regiment upon completion of active duty service.  Additionally, a USAR Deployment Stabilization Statement shows he acknowledged the facts that he had read and understood the Memorandum, dated 15 May 2007, subject:  Implementation Guidance for 24-Month Deployment Stabilization for AC and Individual Ready Reserve (IRR) to RC Transitions; both he and a service representative authenticated this form with their signatures on 9 December 2010.

4.  On 9 December 2010, IMCOM-E, Wiesbaden Transition Center published Orders 343-0003 which amended his discharge orders to show he would be assigned to Company B (-), 2nd Battalion, 228th Aviation Regiment following his separation.  In conjunction with this action, the RC Career Counselor (RCCC) sent a memorandum to the gaining commander informing him/her of the applicant's assignment and requesting that a sponsor be assigned to the applicant in order to assist with his transition.

5.  The applicant's DD Form 214 shows he was honorably discharged from the RA in the rank of CW4.  Block 9 (Command to Which Transferred) shows he was transferred to Company B (-), 2nd Battalion, 228th Aviation Regiment as a drilling Reservist.  Block 12b (Separation Date this Period) shows he was discharged on 28 February 2011.

6.  The applicant provides documentation showing he in-processed and began training with his RC unit in March 2011.

7.  On 1 March 2011, he executed an oath of office as a Reserve warrant officer in the rank of CW4.

8.  The applicant provides email correspondence which shows:

	a.  On 20 April 2011, he was contacted by an RCCC representing the U.S. Army Human Resources Command (HRC) AC to RC help desk.  The RCCC stated the purpose of this email was to follow-up with the applicant to make sure he was able to make good contact with his new USAR unit.

	b.  On 24 April 2011, the applicant informed the RCCC he had established communications with his USAR unit and had attended two drills, but there seemed to be a problem with his pinpoint assignment orders which transferred him from the AC to the RC without any break in service.  He had sought assistance from the USAR warrant officer assignment officer, but was informed he was on leave.  He added that both his unit commander and unit administrator were aware of this issue.  He attested that he was assigned to an authorized position, but still needed actual orders published by HRC stating so.

	c.  On 25 April 2011, the RCCC informed the applicant a change in law took effect starting 1 February 2011 which now required warrant officers to be scroll approved just like commissioned officers based on their dates of release from active duty (REFRAD).  The RCCC informed the applicant he had forwarded the necessary documentation and that the processing time was typically about 
90 days.  He also advised the applicant that once he became scroll approved, he could sign his Reserve Oath of Office and should be complete.

	d.  On 26 April 2011, the applicant contacted the RCCC and another representative at the Wiesbaden Transition Center to inform them of the difficulty he was having with his transition and to request a copy of his separation and transfer documentation.  They sent him the documentation and said they would notify the appropriate point of contact at HRC on the applicant's behalf.

	e.  On 16 May 2011, the applicant contacted the RCCC and inquired about the existence of published Department of the Army Military Personnel (MILPER) messages or any other guidance on the implementation of the new policy.  The RCCC informed the applicant the action was being staffed by the Secretary of Defense (SECDEF) at the time and as soon as the Department of Defense released a message, a MILPER message would follow.  In the meantime, the applicant could address his questions and concerns to the RCCC Help Desk.

9.  On 8 June 2011, HRC published Orders C-06-108978, dated 17 June 2011, and issued him a memorandum of appointment as a Reserve warrant commissioned officer of the Army with a scroll date and effective date of 8 June 2011.  The applicant executed an oath of office for this appointment on 16 June 2011.

10.  An advisory opinion was obtained from the Chief, Personnel Management Division of HRC on 21 May 2013.  The advisory official essentially stated the discrepancy with respect to the applicant's appointment and break in service can be alleviated by an official Army Board for Correction of Military Records (ABCMR) decision directing de facto appointment of 8 June 2011.  Additionally, documentation should be included in his Army Military Human Resource Record (AMHRR) to indicate his acceptance of an RA commission during his Active Duty time, acceptance of a USAR commission after discharge from the RA, and follow-on assignment to a USAR Troop Program Unit (TPU).

	a.  Reference Department of Defense Instruction (DODI) Number 1310.02, dated 8 May 2007 (Incorporating Change 1 as of 20 September 2011), paragraph 6.1.2, states Reserve commissioned officers on the Active-Duty List (ADL) will be transitioned to RA Status provided the meet the requirements for appointment under Reference (d) and Deputy Secretary of Defense Memorandum, "Implementing Guidance:  Transition of the ADL Officer Force to All-Regular Status (Reference (e)).  These are applicable to the applicant as he entered active duty on 30 April 2006; HRC Order A-03-690233, dated 16 March 2006, a call to active duty for a period of not less than three years.  His record does not contain the Appointment Letter or DA Form 71 which should have been completed in compliance with this instruction.  However, RA commission status is properly identified on his DD Form 214.

	b.  Upon completion of duty, the proper means of discharging the applicant's RA commission is by unqualified resignation; this process was initiated on 9 November 2010 per DD Form 2648 (Pre-separation Counseling Checklist for Active Component Service Members) and is the reason identified on his DD Form 214.  However, on 9 December 2010, a request for RC Assignment Orders to Company B (-), 2nd Battalion, 228th Aviation Regiment was executed as a follow-on assignment.  This assignment required the applicant to possess a USAR commission, requiring him to be approved via scroll prior to being tendered a Reserve commission.

	c.  Title 10 U.C. Code, Section 12201 and Army Regulation 135-100 (Appointment of Commissioned and Warrant Officers of the Army) dictate the processes which should have been initiated for the applicant to be tendered and accept the required USAR commission as a CW4.  The basic steps were to be scrolled, tendered an appointment via memorandum, and acceptance by executing a DA Form 71.  While these steps were required by law and regulation they were not followed by the transition point.  His separation date should have been adjusted to allow for the appointment to be approved or otherwise acted upon.  As a result of not extending the discharge date, effective 1 March 2011, the applicant became a civilian, as he no longer possessed any warrant or commission in the U.S. Army or USAR.  Furthermore, as a civilian there is no authority by which to transfer/assign him to a USAR unit.

	d.  After the discharge date, corrective action was initiated and a scroll for USAR commission was completed on 8 June 2011 with the DA Form 71 completed on 16 June 2011 when the applicant accepted a commission in the grade of CW4.  Additionally, orders were published assigning him to a USAR unit.

11.  The advisory official offered the following recommendations to preclude the applicant's break in service:

	a.  The HRC issue a DD Form 215 (Correction to DD Form 214) to amend his DD Form 214.  Block 9 should be changed by deleting the current entry and replacing it with the entry "N/A" (Not Applicable) and Block 12b should be changed to 7 June 2011 (20110607).  This date is the day immediately prior to the earliest date he could accept his USAR commission and would not create a break in service due to being discharged less than 24 hours.

	b.  Documents should be placed in his AMHRR to reflect the tender (Appointment Memorandum) and acceptance (DA Form 71) of the RA commission directed by DODI 1310.02.  Other documents should also be included to reflect the tender and acceptance of the USAR commission with an effective date of 8 June 2011, the earliest date he could accept.  Additionally, the unit assignment order to Company B (-), 2nd Battalion, 228th Aviation Regiment should be corrected to reflect an effective date of 8 June 2011.

	c.  With the approval to change his DD Form 214, Block 12b, the applicant should be entitled to pay and allowances during the period 1 March 2011 through 7 June 2011.  Any entitlements to follow on benefits, such as TRICARE, should have the start date and duration of the entitlement adjusted accordingly to the new separation date.  Furthermore, other personnel records and personal data should be corrected.  These include but may not be limited to, Retirement Points, Date of Rank, Reserve and Pay Entry Basic Date to his Officer Personnel Management File.

12.  The applicant was provided a copy of the advisory opinion and afforded an opportunity to submit a response.  The applicant concurred with the findings and recommendations on 6 June 2013.

13.  Per Title 10, U.S. Code, section 1552, the ABCMR 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 Defense.

14.  Executive Order 13358, 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.

15.  Army Regulation 135-100 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.

16.  Department of Defense Financial Management Regulation, Volume 7A (Military Pay Policy and Procedures - Active Duty and Reserve Pay), Chapter 2 (Repayment of Unearned Portion of Bonuses and Other Benefits), provides in section 0202 (Repayment and non-repayment conditions) provides that, as a general rule, repayment action will not be pursued in situations in which the member's inability to fulfill specified service conditions related to pay or a benefit due to circumstances determined reasonably beyond the member's control.  In addition, the Secretary of the Military Department concerned has the discretion to, at some point in the process, render a case-by-case determination that the member's repayment of, or the Military Department's full payment of an unpaid portion of, pay or a benefit is appropriate based on one or more of the following: 

* contrary to a personnel policy or management objective
* against equity and good conscience
* contrary to the best interest of the United States

17.  Army Regulation 600-8-10 (Leaves and Passes) prescribes the policies, operating tasks, and steps governing military personnel absences.  Paragraph 
5-15 states excess leave is a nonchargeable absence granted for emergencies or unusual circumstances.  The regulation states that during periods of excess leave:

* no leave accrues
* no pay and allowances are earned
* no entitlement to physical disability retired pay is earned 

DISCUSSION AND CONCLUSIONS:

1.  The applicant served on active duty from 30 April 2006 to 28 February 2011.  In connection with his separation, he applied for and accepted an assignment to Company B (-), 2nd Battalion, 228th Aviation Regiment.  Orders, his DD Form 214, in-processing documents, and Records of Training confirm that upon separation, he was transferred to Company B (-), 2nd Battalion, 228th Aviation Regiment, reported for duty, and trained with the unit.  

2.  It appears he was never placed on the scroll when he submitted his discharge packet even though the evidence shows he was reassigned to Company B (-), 2nd Battalion, 228th Aviation Regiment the day following release.  The evidence further shows scroll approval was not granted until 8 June 2011 and his oath of office was executed on 16 June 2011.

3.  All military officer appointments under Title 10, U.S. Code, 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.

4.  Nevertheless, it is clear that administrative errors were committed in the processing of the applicant's 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.  He should not be penalized by HRC's failure to act.

5.  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.  However, the ABCMR does have the authority to amend appointment and assignment orders of Army officers.

6.  The applicant's appointment memorandum reflects a discrepancy between 1 March and 7 June 2011 and erroneously indicates a break in service.  

7.  Although the advisory official opined that the applicant should be entitled to pay and allowances during the period of 1 March 2011 through 7 June 2011, the Secretary of the Military Department concerned has the discretion to render a determination that the member's repayment of, or the Military Department's full payment of an unpaid portion of, a pay or benefit is appropriate based on it being contrary to a personnel policy or management objective or against equity and good conscience.  Therefore, as a matter of equity, the applicant's records should be corrected to show he remained on active duty in the RA in an excess leave status until 7 June 2011, the day before he was appointed as a Reserve warrant officer, without entitlement to active duty back pay and allowances as a result of this correction since he was only in a drilling Reserve status. 

8.  It is presumed that while the applicant served as a Reserve commissioned officer on drill status, he was entitled to and received drill pay.  Therefore, in the interest of equity, it would be appropriate to waive recoupment of any drill pay he might have received.

9.  It is also noted that administrative errors exist in the applicant's record.  Therefore, corrective action should be taken by:

	a.  issuing the applicant an Appointment Memorandum for the RA commission directed by DODI 1310.02 and placing an appropriate document in his AMHRR acknowledging his acceptance of the RA commission.

	b.  issuing the applicant an Appointment Memorandum for Reserve commission in the grade of CW4 effective 8 June 2011 and placing an appropriate document in his AMHRR acknowledging his acceptance of the Reserve commission.

	c.  amending the orders assigning the applicant to Company B (-), 2nd Battalion, 228th Aviation Regiment to reflect an effective date of 8 June 2011.

	d.  issuing the applicant a DD Form 215 to amend his DD Form 214 by deleting the current entry in Block 12b and replacing it with the entry "20110607."
This date is the day immediately prior to the earliest date he could accept his USAR commission and would not create a break in service due to being discharged less than 24 hours.

	e.  showing he was retained on active duty in the RA in an excess leave status until honorably separated on 7 June 2011.
	f.  showing a waiver was requested and approved to allow him to retain any drill pay he may have received prior to 8 June 2011.

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:

	a.  issuing the applicant an Appointment Memorandum for the RA commission directed by DODI 1310.02 and placing an appropriate document in his AMHRR acknowledging his acceptance of the RA commission.

	b.  issuing the applicant an Appointment Memorandum for Reserve commission in the grade of CW4 effective 8 June 2011 and placing an appropriate document in his AMHRR acknowledging his acceptance of the Reserve commission.

	c.  amending the orders assigning the applicant to Company B (-), 2nd Battalion, 228th Aviation Regiment to reflect an effective date of 8 June 2011.

	d.  issuing the applicant a DD Form 215 to amend his DD Form 214 by deleting the current entry in Block 12b and replacing it with the entry "20110607."

	e.  showing he was retained on active duty in the RA in an excess leave status until honorably separated on 7 June 2011.

	f.  showing a waiver was requested and approved to allow him to retain any drill pay he may have received prior to 8 June 2011.

2.  The Board further determined 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 adjusting his appointment date as a CW4 in the USAR to 1 March 2011.



      _______ _ 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)                                         AR20120017902





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