IN THE CASE OF:	  

		BOARD DATE:	    25 July 2013

		DOCKET NUMBER:  AR20130006628 


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 her appointment date as a captain (CPT) in the U.S. Army Reserve (USAR) from 18 May 2011 to
25 October 2010.

2.  She states her DA Form 5691 (Reserve Component Assignment Orders) was completed and signed on 14 October 2010.  She adds this form, as well as her separation orders, and Officer Evaluation Report (OER), clearly reflects her assignment to the 352nd Civil Affairs Command.  Due to an administrative error, her appointment orders were not processed until 6 May 2011, and her reassignment orders were not published until 18 May 2011.  

3.  She provides the following:

* DA Form 71 (Oath of Office - Military Personnel)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Orders 287-0138, dated 14 October 2010 
* DA Form 5691
* Two DA Forms 67-9 (OER)
* ARPC Form 249-E (U.S. Army Human Resource Command (HRC)) Chronological Statement of Retirement Points, dated 28 February 2013
* Orders C-05-107399, dated 18 May 2011
* Appointment Memorandum, dated 6 May 2011
* Written Agreement-Officer Affiliation Bonus (OAB) Acknowledgement


CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a second lieutenant in the USAR on 5 May 2001 and she was subsequently promoted to first lieutenant on 5 January 2003. On 5 July 2003, she was ordered to active duty.  On 18 May 2005, she was promoted to CPT.  She accepted a Regular Army (RA) appointment on an unknown date.

2.  A DA Form 5691-R, dated 14 October 2010, shows the applicant voluntarily accepted an assignment with the 352nd Civil Affairs Command upon completion of active duty service.  Additionally, a Written OAB Agreement, dated 14 October 2010, shows in connection with her affiliation with the USAR it was acknowledged that she would receive an OAB.  

3.  Her DD Form 214 shows, on 24 October 2010, she was honorably discharged from the RA in the rank of CPT and transferred to the 352nd Civil Affairs Command as a drilling Reservist.  She completed 9 years, 4 months, and 23 days of creditable active Army service during this period.  Orders 287-0138, dated 14 October 2010, show she was released from active duty (REFRAD) and subsequently reassigned.

4.  An OER for the period 23 October 2010 through 19 May 2012 shows she was rated as the Public Communications Officer, Headquarters and Headquarters Company, 352nd Civil Affairs Command, Fort Meade, MD.

5.  On 6 May 2011, HRC, Fort Knox, KY, issued the applicant a memorandum of appointment as a Reserve commissioned officer of the Army, effective 6 May 2011.

6.  On 18 May 2011, she executed an oath of office as a Reserve commissioned officer in the rank of CPT.

7.  An advisory opinion was obtained from the Officer Accessions Branch of HRC on 30 April 2013.  The advisory official stated the discrepancy with respect to the applicant's appointment date can be corrected by an official Army Board for Correction of Military Records (ABCMR) decision directing de facto appointment of 25 October 2010.

	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 separated on 24 October 2010; however, she was not identified as a candidate for USAR appointment until 12 October 2010.  Once identified, her name was immediately submitted for scroll approval which was granted on 6 May 2011 and she executed an oath of office on 18 May 2011.  Therefore, her appointment memorandum date reflects the break in service discrepancy.  

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

9.  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.

10.  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.

11.  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.

12.  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

13.  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, in pertinent part 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 5 June 2003 to 24 October 2010.  In connection with her separation she applied for and accepted an assignment with the 352nd Civil Affairs Command.  Orders, her DD Form 214, and her OER confirm that she was transferred to the 352nd Civil Affairs Command upon separation.  

2.  It appears she was never placed on the scroll when she submitted her discharge packet even though the evidence shows she was reassigned to the 352nd Civil Affairs Command the day following release.  The evidence further shows scroll approval was not granted until 6 May 2011 and her oath of office was executed on 18 May 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 her appointment caused the applicant to be penalized for an action that was beyond her control.  She 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 25 October 2010 and 18 May 2011 and erroneously indicates a break in service.
As a matter of equity, the applicant’s records should be corrected to show she remained on active duty in the RA in an excess leave status until 17 May 2011, the day before she was appointed as a Reserve commissioned officer, without entitlement to active duty back pay and allowances as a result of this correction since she was only in a drilling Reserve status.

7.  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.  

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

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 she was retained on active duty in the RA in an excess leave status until honorably separated on 17 May 2011
* validating her appointment in the USAR effective 18 May 2011
* showing a waiver was requested and approved to allow her to retain any drill pay she may have received prior to 18 May 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 her appointment date as a CPT in the USAR to 25 October 2010.



      ___________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)                                         AR20130006628



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ABCMR Record of Proceedings (cont)                                         AR20130006628



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