IN THE CASE OF:
BOARD DATE: 29 October 2013
DOCKET NUMBER: AR20130013701
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 record to show:
* he did not have a break in service during the period 1 December 2012 through 21 May 2013
* his appointment date in the U.S. Army Reserve (USAR) as 2 December 2012
2. The applicant states:
* on 1 December 2012, he was discharged from active duty
* prior to his expiration of term of service, he should have been placed on the scroll list in order to join the USAR as a chief warrant officer three (CW3)/W-3
* he was unaware of a scroll list and was informed that the personnel office at Fort Bliss, TX should have taken care of his issue
* his records now show he joined the USAR on 21 May 2013 even though he has been drilling and training with his unit since December 2012
* he should not have a break in service due to someone else's mistake and his appointment date should be 2 December 2012
3. The applicant provides
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* emails
CONSIDERATION OF EVIDENCE:
1. On 1 December 2012, the applicant was honorably discharged from the Regular Army in the rank/grade of CW3/W-3.
2. Records show the applicant was incorrectly accessed into a Troop Program Unit (TPU) on 2 December 2012 without submitting a waiver and being scrolled for CW3.
3. Records show that on 21 May 2013, the applicant was scroll-approved for CW3.
4. An advisory opinion was obtained on 13 August 2013 in the processing of this case from the Deputy Chief, Operations, Plans and Distribution Division, U.S. Army Human Resources Command (HRC), Fort Knox, KY. The official recommends approval of the applicant's request and stated:
a. Upon notification that the applicant was incorrectly accessed into a TPU status which was not officially sanctioned by scroll confirmation, his name was submitted for scroll approval on 15 April 2013.
b. The applicant's scroll approval was not confirmed until 21 May 2013, resulting in the break in service discrepancy.
5. On 12 September 2013, the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.
6. On 23 September 2013, the applicant stated he concurred with the advisory opinion.
7. Executive Order 13358 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 into the USAR must be on a "scroll" approved and signed by the Secretary of Defense before an Oath of Office can be initiated.
8. Army Regulation 600-8-10 (Leaves and Passes) defines excess leave as a non-chargeable absence without pay and allowances granted for emergencies or unusual circumstances or as otherwise specified in this regulation.
DISCUSSION AND CONCLUSIONS:
1. The applicant was discharged from the Regular Army on 1 December 2012. He was appointed as a USAR officer on 2 December 2012. However, this appointment was subsequently found to be invalid through no fault of his own because he was never added to the scroll.
2. Due to circumstances beyond his control, written approval and inclusion of his name on an approved scroll was not received until 21 May 2013. This delay denied him equitable reappointment and caused a break in service.
3. This Board does not have the authority to change the date of an appointment approved by the Secretary of Defense.
4. However, as a matter of equity, it would be appropriate to correct his record to show he did not have a break in service and properly accessing him in the USAR by:
* voiding his discharge from the Regular Army on 1 December 2012
* placing him in an excess leave status from 1 December 2012 until 20 May 2013
* discharging him from the Regular Army on 20 May 2013
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:
* voiding his discharge from the Regular Army on 1 December 2012
* showing he was placed in an excess leave status from 1 December 2012 until 20 May 2013
* showing he was discharged from the Regular Army on 20 May 2013
* showing any debt he incurs as a result of the above correction, due to recoupment of any drill pay he received, was waived by the appropriate authority
2. The Board further determined that 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 correction of his records to show he was appointed in the USAR on 2 December 2012.
___________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) AR20130013701
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ABCMR Record of Proceedings (cont) AR20130013701
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