BOARD DATE: 2 July 2013
DOCKET NUMBER: AR20130006877
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 reconsideration of his request to change his date of rank (DOR) to captain from 30 April 2009 to 1 January 2006.
2. The applicant states that at the time he previously applied to the Board he was mobilized to Fort Bliss, Texas and did not have access to all of his records. He goes on to state that when he returned to his permanent address he found the orders transferring him to the Individual Ready Reserve (IRR) and his Oath of Office.
3. The applicant provides copies of his separation orders and oath of office.
CONSIDERATION OF EVIDENCE:
1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120007947 on 20 December 2012.
2. The applicant provides new evidence that will be considered by the Board.
3. The applicant was appointed a second lieutenant in the U.S. Army Reserve (USAR) on 10 May 2002 with an military service obligation (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).
4. On 1 January 2006, he was promoted to captain with a DOR of 1 January 2006.
5. 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.
6. His records are void of documentation which shows he executed an oath of office on 2 July 2006; however; the applicant has provided a copy of his oath of office showing that he accepted a USAR appointment in the rank of captain on
1 July 2006.
7. As a result of the absence of his oath of office in his official records, he was appointed a captain in the USAR on 30 October 2009 with a DOR of 30 April 2009.
8. 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.
9. On 20 December 2012, the Board denied the applicants request based on the absence of evidence showing that he accepted a USAR appointment.
10. Army Regulation 600-8-24 states an officer must serve in the Armed Forces until completion of statutory MSO. Release from active duty under the 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.
11. 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.
12. 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.
13. 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.
14. 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. During the previous review of the applicants application, it was determined that there was no evidence to show that the applicant had accepted a USAR appointment at the time of his discharge and voted to deny his request.
2. However, the applicant has provided a copy of his oath of office showing that he accepted a USAR appointment in the rank of captain on the date of his discharge.
3. Accordingly, his DOR for promotion to the rank of captain should be adjusted to 1 January 2006, the date he was originally promoted to that rank.
BOARD VOTE:
___x__ ____x____ ____x____ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined that the evidence presented was sufficient to warrant amendment of the ABCMRs decision in Docket Number AR20120007947, dated 20 December 2012. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by changing his DOR to captain to 1 January 2006.
_______ _ 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) AR20130006877
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ABCMR Record of Proceedings (cont) AR20130006877
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