IN THE CASE OF:	  

		BOARD DATE:  22 August 2013

		DOCKET NUMBER:  AR20130014586 


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, reconsideration of his earlier request for correction of his records as follows:

* Reinstatement to active duty under the original Selective Continuation (SELCON) Agreement
* Correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was transferred to the U.S. Army Reserve (USAR) Control Group (Individual Ready Reserve (IRR))
* Elimination of any break in service
* Promotion to major (MAJ)
* Credit of an appropriate number of retirement points to make a good year in 2011

2.  The applicant states, in effect:

	a.  He served on active duty from 21 June 2000 to 1 October 2010.  He was twice considered but not selected for promotion to major (MAJ).  He was given an opportunity to continue his active service under the SELCON but he elected not to do so.  As required by law, he was honorably discharged from active duty on 1 October 2010.  His DD Form 214 listed the entry "NA" in the block titled "Command to Which Transferred."  However, prior to his discharge, he requested a transfer to the IRR and he also executed an oath of office, indicating his acceptance of a USAR appointment, on 2 October 2010.  

	b.  By regulation, when a Regular Army officer is discharged and the officer accepts a USAR appointment, the entry in item 9 (Command to Which Transferred To) reflects the USAR Control Group (Annual Training) or (Reinforcement (IRR)).  When the Board first considered his case, the Board stated under the Discussion and Conclusion section of the Record of Proceedings that "the applicant is entitled to correction of his DD Form 214 to show the entry "USAR Control Group (Reinforcement), St. Louis, MO" in item 9.  However, in Board Determination/Recommendation section of the same Record of Proceedings, the Board did not execute its finding.

3.  The applicant did not provide any evidence.

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 AR20120006335, on 31 January 2013.

2.  The applicant provides a new argument.  This argument is considered new evidence and warrants consideration by the Board. 

3.  The applicant was appointed as an aviation Reserve commissioned officer and executed an oath of office on 21 April 2000.  He entered active duty on 21 June 2000, served in a variety of stateside assignments, and he attained the rank of captain (CPT) on 1 November 2003.  He accepted a Regular Army appointment on an unknown date.

4.  On 29 March 2010, by memorandum, the Director of Officer Personnel Management, U.S. Army Human Resources Command (HRC) notified the applicant that:

	a.  He had been considered for promotion to MAJ by the Fiscal Year 2010 Major Army, Maneuver, Fires & Effects, Operations Support, and Force Sustainment Competitive Categories Promotion Selection Board but he was not selected for promotion.  

	b.  This was his second non-selection but a SELCON board had recommended him for selective continuation for an additional 3 years in the current grade.  If he declined continuation, by law he must separate from the Army no later than the seventh month (October 2010) after approval of the promotion board report (March 2010).

5.  On 13 May 2010, he acknowledged receipt of the SELCON memorandum.  He declined continuation on active duty and indicated he desired an appointment in the USAR.  Furthermore, on 25 May 2010, he completed an Agreement to Join the Ready Reserve.  The agreement was authenticated by an RC career counselor.

6.  Prior to his discharge, he was interviewed by an RC career counselor on 12 August 2010.  The resulting DA Form 5690 shows the entries "wants IRR assignment" and "request MSG (master sergeant) Axxxx to scroll approve on 12 Aug 10." 

7.  He was honorably discharged from active duty on 1 October 2010.  His DD Form 214 shows he completed 10 years, 3 months, and 1 day of creditable active service.  Item 9 of his DD Form 214 shows the entry "N/A."

8.  On 2 October 2010, he executed an oath of office.  However, there is no indication that his name was placed on the scroll list.  

9.  On 15 November 2011, HRC issued him an appointment memorandum appointing him as a Reserve commissioned officer in the rank of CPT effective 15 November 2011 and on 4 January 2012, HRC published Orders C-01-200105 appointing him as a Reserve commissioned officer effective 15 November 2011. 

10.  Previously, an advisory opinion was obtained on 12 June 2012 in the processing of this case.  An HRC official restated the facts of the case but did not opine.  The official stated if the Board ruled in his favor and eliminates the break in service, he would receive the requisite 15 retirement points that all Soldiers receive for Reserve membership.  He could not be awarded other retirement points because he did not perform any active or inactive duty between the date of discharge (1 October 2010) and the date of accession (15 November 2011).  

11.  Title 10, U.S. Code, section 632, states except for an officer of the Navy and Marine Corps who is an officer designated for limited duty (to whom section 5596(e) or 6383 of this title applies) and except as provided under section 637(a) of this title, each officer of the Army, Air Force, or Marine Corps on the active-duty list who holds the grade of captain or major, and each officer of the Navy on the active-duty list who holds the grade of lieutenant or lieutenant commander, who has failed of selection for promotion to the next higher grade for the second time and whose name is not on a list of officers recommended for promotion to the next higher grade shall be discharged not later than the first day of the seventh month after the month in which the President approves the report of the board which considered the officer for the second time.

12.  Title 10, U.S. Code, section 637 states an officer who is selected for continuation on active duty under this subsection but declines to continue on active duty shall be discharged, retired, or retained on active duty, as appropriate, in accordance with section 632 of this title.

13.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It establishes standardized policy for preparing and distributing the DD Form 214.  The entry in item 9 is determined by Table 2-1.  This table states when a Regular Army officer is discharged and the officer accepts a USAR appointment, the entry in item 9 reflects the USAR Control Group (Annual Training) or (Reinforcement (IRR)). 

14.  Army Regulation 600-8-29 (Officer Promotions) prescribes the officer promotion function of the military personnel system.  It provides principles of support, standards of service, policies, tasks, rules, and steps governing all work required in the field to support officer promotions.  Chapter 7 provides for SSBs:

	a.  Paragraph 7-2, the SSBs may be convened under Title 10, U.S. Code, section 628 to consider or reconsider commissioned or warrant officers for promotion when Headquarter, Department of the Army (HQDA) discovers one or more of the following:  

		(1)  An officer was not considered from in or above the promotion zone by a regularly scheduled board because of administrative error.  This would include officers who missed a regularly scheduled board while on the temporary disability retired list and who have since been placed on the active duty list (SSB required).

		(2)  The board that considered an officer from in or above the promotion zone acted contrary to law or made a material error (SSB discretionary).

		(3) The board that considered an officer from in or above the promotion zone did not have before it some material information (SSB discretionary).

DISCUSSION AND CONCLUSIONS:

1.  The applicant served on active duty from 21 June 2000 to 1 October 2010.  He was twice considered but not selected for promotion to MAJ.  He was given an opportunity to continue his active service.  He declined SELCON and requested a transfer to the IRR.  An officer who is selected for retention by the SELCON board is allowed to continue service until he/she becomes eligible to retire.  However, an officer who declined SELCON is discharged from the Army. 
2.  An officer who is so discharged may be eligible for appointment with a waiver. It appears the applicant was neither aware of the requirement for a waiver nor did anyone tell him of this requirement when he left active duty with an intent to join the IRR.  Consequently, he was not transferred to the IRR.  He eventually succeeded in gaining entry into the USAR and he was appointed on 15 November 2011.  

3.  It is reasonable to presume if the applicant had been aware of the statutory and regulatory requirement, he would have either accepted SELCON or applied for a waiver for appointment.  As such, in order to correct the applicant's records, it must be presumed he would have accepted SELCON and continued on active duty until 14 November 2011, the day before his appointment in the USAR.   

4.  This would require revoking his discharge orders as well as voiding his DD Form 214 and issuing new orders and a new DD Form 214 showing he was discharged on 14 November 2011 vice 1 October 2010 with full service credit and active duty pay from 1 October 2010 through 14 November 2011. 

5.  Additionally, his DD Form 214 listed the entry "NA" in the block titled "Command to Which Transferred."  However, by regulation, when a Regular Army officer is discharged and the officer accepts a USAR appointment, the entry in item 9 reflects the USAR Control Group (Annual Training) or (Reinforcement (IRR)).  Therefore, the applicant is entitled to correction of his DD Form 214 to show the entry "USAR Control Group (Reinforcement), St. Louis, MO" in item 9.

6.  Furthermore, since his date of rank to CPT is 1 November 2003, he would have been eligible for promotion consideration to MAJ by the FY11 and the FY12 promotion selection boards.  Therefore, it is appropriate to have his records considered by an SSB for promotion consideration to MAJ under the appropriate year criteria.  

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 ABCMR’s decision in Docket Number AR20120006335, on 31 January 2013.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  showing he accepted Selective Continuation and continued on active duty through 14 November 2011; 

	b.  revoking his discharge orders of 1 October 2010 and issuing him discharge orders effective 14 November 2011; 

	c.  voiding his DD Form 214 ending on 1 October 2010 and issuing him a new DD Form 214 showing a separation date of 14 November 2011 and the entry in item 9 to reflect the USAR Control Group (Annual Training) or (Reinforcement (IRR);

	d.  awarding him full active duty service credit as well as active duty pay from 2 October 2010 to 14 November 2011; 

	e.  Submitting the applicant’s records to a duly-constituted SSB for consideration for promotion to MAJ under the appropriate MAJ selection board year criteria.

		(1)  That if the applicant is selected for promotion his records be further corrected by promoting him to MAJ based on his assigned promotion sequence number with the appropriate date of rank, and with all due back pay and allowances, or by assigning him the appropriate promotion sequence number for future promotion purposes. 

		(2)  That if not selected, the applicant be so notified.



      _______ _  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)                                         AR20130014586



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ABCMR Record of Proceedings (cont)                                         AR20130014586



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