BOARD DATE: 26 June 2014
DOCKET NUMBER: AR20130015824
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 his date of rank (DOR) for captain (CPT) be corrected to his original DOR of 30 January 2009.
2. The applicant states that while preparing necessary documentation for an upcoming "below zone" major promotion board, he was told that it appeared a "scroll" had never been executed as a CPT in his transition from the Regular Army (RA) to the U.S. Army Reserve (USAR). He was told to create a new
DA Form 71 (Oath of Office - Military Personnel) and the U.S. Army Human Resources Command (HRC) would then issue a new appointment memorandum and scroll, with an effective date of 16 July 2013. He was promoted to CPT while in the RA on 30 January 2009. He was discharged from the RA on 15 June 2009 and entered the USAR the following day. He has continued to serve in a troop program unit (TPU) and is currently mobilized, serving in the United States.
3. The applicant provides:
* appointment as a second lieutenant in the RA
* DA Form 71, dated 8 December 2005
* promotion orders to CPT, dated 19 February 2009
* DD Form 214 (Certificate of Release or Discharge from Active Duty) with separation date of 15 June 2009
* DD Form 215 (Correction to DD Form 214), dated 1 September 2009
* four DA Forms 67-9 (Officer Evaluation Report (OER))
* DA Form 71, dated 16 July 2013
* assignment orders dated 9 August 2013
* appointment memorandum, dated 16 July 2013
* email between the applicant and HRC
CONSIDERATION OF EVIDENCE:
1. After serving 5 months and 15 days in the RA in an enlisted status, on
8 December 2005 the applicant was appointed a second lieutenant in the RA, Engineer Branch. He was deployed to Iraq from 24 October 2007 to
23 December 2008.
2. HRC Order Number 050-082, dated 19 February 2009, promoted him to CPT effective 30 January 2009 with a DOR of 30 January 2009.
3. On 15 June 2009, the applicant was discharged. He completed 3 years,
6 months, and 8 days of active service that was characterized as honorable. His DD Form 214 shows his discharge grade as CPT and his effective date of pay grade as 30 January 2009. The DD Form 215, dated 1 September 2009, shows he was transferred to the 2nd Battalion, 345th Regiment, 87th Division, USAR Component, Columbia, SC.
4. There are no documents in his official military personnel file in integrated Personnel Electronic Records Management System (iPERMS) concerning his appointment in the USAR in June 2009.
5. The applicant provided four OERs that show he was participating with TPUs during the period from 4 March 2009 to 3 March 2013.
6. On 20 September 2012, he was ordered to active duty as a member of his Reserve Component unit for 365 days beginning 5 January 2013.
7. A memorandum, dated 16 July 2013, from HRC appointed the applicant a Reserve commissioned officer of the Army in the grade of CPT. This memorandum established his effective date and his DOR as 16 July 2013.
8. His APRC Form 249-E (Chronological Statement of Retirement Points), printed on 26 November 2013, shows that, since his RA discharge, he has completed qualifying years for non-regular service retired pay in the retirement years ending:
* 10 February 2010 - 56 points
* 10 February 2011 - 76 points
* 10 February 2012 - 113 points
* 10 February 2013 - 147 points
9. An advisory opinion, dated 1 November 2013, was received from HRC. HRC indicated the applicant was submitted as a first lieutenant to the Secretary of Defense and returned confirmed on 12 January 2009. However, scroll confirmation is rank specific for officers transitioning from RA to USAR. He was promoted to CPT 6 months before he was discharged; therefore, the scroll for
first lieutenant was not sufficient to process his reserve commission. The scroll resubmitted in the rank of CPT was confirmed on 16 July 2013.
10. The applicant was provided a copy of the opinion; however, he has provided no response or rebuttal.
11. Authority granted to the Secretaries of the Military Departments in Secretary of Defense Memorandum, subject: Re-delegation of Authority Under Executive Order 12396, dated 9 December 1982, to appoint officers under section 624 of
Title 10, U.S. Code (USC), in grades O-2 and O-3 was rescinded effective 1 July 2005 based on advice from the Department of Justice that prohibits re-delegation below the Secretary of Defense of the President's authority to appoint military officers. All military officer appointments under section 12203 of Title 10, USC, including original appointments, in the Reserve of the Army, Reserve of the Air Force, Naval Reserve, and Marine Corps Reserve, not previously approved by 30 June 2005, shall also be submitted to the Secretary of Defense.
12. Title 10, U.S. Code, section 12203, provides that appointments of Reserve officers in the grades of lieutenant colonel and below shall be made by the President. This authority has been delegated to the Secretary of Defense via executive order.
DISCUSSION AND CONCLUSIONS:
1. The evidence clearly shows the applicant continued to serve in the USAR from the day after his discharge from the RA. Therefore, his DOR for CPT should not have been changed upon entry into the USAR.
2. The only way his effective date of promotion to CPT can be changed would be to show the Secretary of Defense approved his promotion on an earlier date. However, the ABCMR has no jurisdiction over Department of Defense records and therefore cannot make that type of correction.
3. However, in view of the above, it would be equitable in this case to correct his DOR to CPT to 30 January 2009, his original DOR, so he remains competitive with his peers. As a result of this correction, his records should be placed before any promotion selection boards he may have missed.
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 a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by changing his DOR to CPT to 30 January 2009. As a result of this correction, his records should be placed before any promotion selection boards he may have missed.
_______ _ 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) AR20130015824
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