IN THE CASE OF:	  

		BOARD DATE:	  25 June 2013

		DOCKET NUMBER:  AR20130005329 


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 appointment date and date of rank (DOR) as a first lieutenant (1LT) in the U.S. Army Reserve (USAR) from 15 January 2013 to 1 January 2013.

2.  The applicant states there was no break in service when he left active duty in the Regular Army (RA) and transferred to the USAR.  He completed all the required documents to transition into the USAR immediately following his release from active duty (REFRAD) and per his assignment orders, he was released directly into the Reserve Component (RC).  Further, his DA Form 71 (Oath of Office - Military Personnel) shows he was sworn into the RC immediately upon his REFRAD.  As he was a promotable 1LT at the time of his REFRAD, this break in service impacts his promotion eligibility.  He is seeking to restore his appointment date to the time of REFRAD in accordance with his orders and Oath of Office.

3.  The applicant provides:

* Orders 334-0321 (REFRAD orders)
* Memorandum of Assignment (amendment of REFRAD orders)
* DA Form 3540 (Acknowledgement of Annual Orientation)
* Deployment Stabilization Statement
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DA Form 71
* Appointment Memorandum


CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the RA on 3 February 2009.  On 15 July 2009, he was honorably discharged for the purpose of accepting a commission in the Army.

2.  On 16 July 2009, he was appointed as a second lieutenant (2LT) in the RA.  He served in a variety of assignments as a Military Police (MP) Corps officer.  He was promoted to 1LT on 16 January 2011 and he served in Iraq from 21 October to 14 December 2011.

3.  On 29 November 2012, Headquarters, Joint Readiness Training Center and Fort Polk, LA, published Orders 334-0321 ordering his REFRAD and assigning him to the U.S. Army Transition Center for separation processing effective 1 January 2013.  These orders further assigned him to the USAR Control Group (Reinforcement).

4.  A Memorandum of Assignment, dated 28 December 2012, amended his REFRAD orders by further assigning him to 3d Battalion, 347th Infantry Regiment, 87th Infantry Division, after REFRAD.

5.  A DA Form 3540, dated 28 December 2012, shows the applicant certified he had been counseled that the effective date of his USAR enlistment or transfer would be the day after his discharge or REFRAD.  On the same date, he was issued a Deployment Stabilization Statement which shows that due to the fact he was transferring directly into a Troop Program Unit (TPU) from the Active Component (AC), his command was to place him in a 24-month non-deployable status from the date of assignment to the RC beginning on his date of assignment, 2 January 2013.

6.  His DD Form 214 shows he was honorably REFRAD in the rank of 1LT on 1 January 2013.  He completed 3 years, 5 months, and 16 days of creditable active Army service during this period.  Upon REFRAD, he was transferred to 3d Battalion, 347th Infantry Regiment, 87th Infantry Division.

7.  On 2 January 2013, he executed an oath of office as a Reserve commissioned officer.

8.  On 15 January 2013, the U.S. Army Human Resources Command (HRC), Fort Knox, KY, issued him a memorandum of appointment as a Reserve commissioned officer of the Army, effective 15 January 2013.

9.  An advisory opinion was obtained from the Officer Accessions Branch of HRC on 17 April 2013.  The advisory official stated the discrepancy with respect to the appointment can be corrected by an official Army Board for Correction of Military Records (ABCMR) decision directing de facto appointment of 2 January 2013.

	a.  Reference Executive Order 13358 (Assignment of Functions Related to Certain Appointments, Promotion, and Commissions in the Armed Forces), dated 30 September 2004.  In this reference, the White House has delegated authority of the President 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.

	b.  The applicant was REFRAD on 1 January 2013; however, he was not identified as a candidate for USAR appointment at that time.  Once identified, his name was immediately submitted for scroll approval which was granted on 15 January 2013.

10.  The applicant was provided a copy of the advisory opinion and afforded an opportunity to submit a response, but elected not to do so.

11.  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.

12.  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.

13.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant served on active duty from 3 February 2009 to 1 January 2013. 
In connection with his REFRAD, he applied for and accepted assignment to a TPU in the USAR.  Accordingly, he executed an oath of office for appointment in the USAR the day after his REFRAD.

2.  It appears he was never placed on the scroll when he submitted his discharge packet even though he had a reserve vacancy and his packet was processed by HRC.  The error was discovered in January 2013 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.

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 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.  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 2 January 2013 and 15 January 2013 and erroneously indicates a break in service.  As a matter of equity, the applicant’s records should be corrected to show he remained on active duty in the Regular Army until 14 January 2013, the day before he was appointed as a Reserve commissioned officer, with entitlement to active duty back pay and allowances as a result of this correction.

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:

* showing he was retained on active duty in the Regular Army until honorably separated on 14 January 2013
* paying him any and all due active duty back pay and allowances, minus any possible offsets, as a result of this correction
* validating his appointment in the USAR effective 15 January 2013

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 and date of rank as a 1LT in the USAR to 1 January 2013.



      ____________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)                                         AR20130005329





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130005329



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1