BOARD DATE:	  15 April 2014

		DOCKET NUMBER:  AR20140003726 


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 his appointment date as a captain (CPT) in the U.S. Army Reserve (USAR) from 29 June 2011 to 1 June 2011.
 
2.  The applicant states:

	a.  On 18 June 2013, he received an email communication from Ms. D____ H____ of the Officer Accession Branch, Officer Personnel Management Division, U.S. Army Human Resources Command (HRC), requesting a DA Form 71 (Oath of Office – Military Personnel) for his appointment as an officer in the USAR.

	b.  Ms. H____ explained that due to an administrative error in the Congressional scrolling process, the DA Form 71 that was executed during his transition from Active Component service to Reserve Component service with an effective date of 1 June 2011 was not on file and his appointment as an officer in the USAR was invalid.

	c.  Ms. H____ instructed him to submit a new DA Form 71 to her office with an effective date of 29 June 2011.  Ms. H____ advised him that he would have a 28-day gap in service from 1 to 28 June 2011 as a result of the administrative error.

	d.  Ms. H____ advised him that the only way to recover the 28 days of service was to appeal to the Army Review Boards Agency.

	e.  He has served as a troop program unit Soldier since 1 June 2011.

3.  The applicant provides:

* a self-authored statement
* three pages of email
* two DA Forms 71
* two memoranda
* DA Form 5690-R (Reserve Components Career Counselor Interview Record)
* DA Form 5691-R (Request for Reserve Component Assignment Orders)
* Orders 351-0016
* Orders 060-0025

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

The applicant lists his HRC point of contact as counsel.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army (RA) on 12 February 2002.  On 5 March 2008, he was honorably discharged for the purpose of accepting a commission in the RA.  His records are void of any documentation supporting his original appointment as an RA commissioned officer; however, the evidence shows he was promoted to first lieutenant (1LT) on 6 September 2009.

2.  On 17 December 2010, the Joint Base Lewis-McChord, WA, Transition Center published Orders 351-0016 which show the applicant was reassigned to the U.S. Army Transition Point for transition processing with a discharge effective date of 31 May 2011.

3.  A DA Form 5691-R, dated 22 February 2011, shows the applicant voluntarily accepted an assignment with Headquarters and Headquarters Service Company, 411th Engineer Battalion, upon completion of active duty service.

4.  On 1 March 2011, the Joint Base Lewis-McChord Transition Center published Orders 060-0025 which amended his discharge orders to show he would be assigned to Headquarters and Headquarters Service Company, 411th Engineer Battalion, following his separation.

5.  His records contain Headquarters, HRC, Order Number 098-036, dated 8 April 2011, that shows he was promoted to the rank of CPT with an effective date and date of rank of 1 May 2011.

6.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was honorably discharged from the RA in the rank of 1LT.  Item 9 (Command to Which Transferred) shows he was transferred (i.e., assigned) to Headquarters and Headquarters Service Company, 411th Engineer Battalion.  Item 12b (Separation Date This Period) shows he was discharged on 31 May 2011.

7.  The applicant provided:

	a.  a DA Form 71 that shows he executed an oath of office as a Reserve commissioned officer in the rank of 1LT on 1 June 2011 and

	b.  email correspondence which shows he was contacted by Ms. H____ of HRC on 18 June 2013 who informed him the scroll confirmation for his promotion to CPT had returned and they were awaiting his DA Form 71 executing and accepting his appointment as a Reserve commissioned officer.

8.  The applicant provided and his records contain:

	a.  a DA Form 71 that shows he executed an oath of office as a Reserve commissioned officer in the rank of CPT on 29 June 2011 and

	b.  a memorandum of appointment as a Reserve commissioned officer of the Army with a scrolling date and effective date of 29 June 2011.  The memorandum also confirms that the applicant executed an oath of office for this appointment on 29 June 2011.

9.  Per Title 10, U.S. Code, section 1552, the Army Board for Correction of Military Records 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.  Title 10, U.S. Code, section 12201, and Army Regulation 135-100 (Army National Guard and Army Reserve – 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 current grade with time in grade for promotion purposes equal to the amount of time in the permanent grade held as a Regular commissioned officer at the time of discharge.  The basic steps are:  being scrolled, being tendered an appointment via memorandum, and accepting by executing a DA Form 71.

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), section 0202 (Repayment and Non-Repayment Conditions), provides that repayment action will not be pursued as a general rule 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 render a case-by-case determination at some point in the process 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.  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.  In connection with his discharge on 31 May 2011, the applicant applied for and accepted assignment to a USAR troop program unit.  Title 10, U.S. Code, section 12201, and Army Regulation 135-100 dictate the processes which should have been initiated for the applicant to be tendered and accept the required USAR commission.  The basic steps were:  being scrolled, being tendered an appointment via memorandum, and accepting by executing a DA Form 71.  While these steps were required by law and regulation, it appears they were not followed by the transition point.  His separation date should have been adjusted to allow for the appointment to be approved or otherwise acted upon.  As a result of not extending the applicant's discharge date, he reverted to a civilian status effective 1 June 2011 as he no longer possessed a commission in the U.S. Army or USAR.  Furthermore, as a civilian there is no authority by which to transfer/assign him to a USAR unit.

2.  It seems he was never placed on the scroll when he submitted his discharge packet even though the evidence shows he was reassigned to Headquarters and Headquarters Service Company, 411th Engineer Battalion, following his discharge.  It appears the error was discovered in June 2013 and at that time his name was submitted for scroll approval.  Based on the executive order, appointment could not be issued until the scroll approval was received.

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 processing of the lists 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 his appointment.  It is equally clear that the administrative errors in the processing of his appointment caused the applicant to be penalized for an action that was beyond his control.  He 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 1 June 2011 and 29 June 2011 which erroneously indicates a break in service.

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.  Therefore, as a matter of equity, the applicant's records should be corrected to show he remained on active duty in the RA in an excess leave status until 28 June 2011, the day before he was appointed as a Reserve commissioned officer, without entitlement to active duty back pay and allowances as a result of this correction.

8.  It is presumed that while the applicant served as a Reserve commissioned officer in a drilling status, he may have been entitled to and received inactive duty training (IDT) pay.  Therefore, in the interest of equity, it would be appropriate to waive recoupment of any IDT pay he may have received for Reserve duty performed prior to 29 June 2011.

9.  Therefore, corrective action should be taken by:

	a.  correcting his DD Form 214 by deleting the current entry in item 12b and replacing it with the entry "2011  06  28."  This date is the day immediately prior to the earliest date he could accept his USAR commission and would not create a break in service as a result of being discharged less than 24 hours;

	b.  showing he was retained on active duty in the RA in an excess leave status until he was honorably separated on 28 June 2011; and

	c.  showing a waiver was requested and approved allowing him to retain any IDT pay he may have received for Reserve duty performed prior to 29 June 2011.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x___  ___x_____  ___x_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is 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:

	a.  amending the orders assigning him to Headquarters and Headquarters Service Company, 411th Engineer Battalion, to reflect an effective date of 29 June 2011;

	b.  amending his DD Form 214 by deleting the current entry in item 12b and replacing it with the entry "2011  06  28";

	c.  showing he was retained on active duty in the RA in an excess leave status until honorably separated on 28 June 2011; and
	d.  showing a waiver was requested and approved allowing him to retain any IDT pay he may have received for Reserve duty performed prior to 29 June 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 his appointment date as a CPT in the USAR to 1 June 2011.



      ___________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)                                         AR20140003726



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ABCMR Record of Proceedings (cont)                                         AR20140003726



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