BOARD DATE: 13 June 2017 DOCKET NUMBER: AR20150019175 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x____ ___x_____ ____x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 13 June 2017 DOCKET NUMBER: AR20150019175 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. ____________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. BOARD DATE: 13 June 2017 DOCKET NUMBER: AR20150019175 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 records to show he was accessed in the Army in the rank of captain (CPT)/O-3 and amendment of the date shown on his DA Form 71 (Oath of Office). 2. The applicant states: a. He was transferred from the Air National Guard (ANG) to the Army National Guard (ARNG) with the issuance of a DA Form 71 on 23 April 2015. b. The ANG promoted him to the rank of CPT on 6 May 2015 and the National Guard Bureau (NGB) issued him Federal recognition. c. On 14 May 2015, Army officials provided a DA Form 71, dated 23 April 2016 vice 2015, to the ANG and his S-1 accordingly told him he would not be accessed into the Army until 23 April 2016. d. He remained on the Air Force rolls through 17 June 2015 and received pay for a unit training assembly he attended on 12 May 2015. e. He believes his records and oath of office should be amended based on his service in the ANG through June 2015 and the unit training assemblies he attended in the CPT rank. 3. The applicant provides: * Honorable Discharge Certificate * NGB Form 22 (Report of Separation and Record of Service) * DA Form 71 (Oath of Office) * NGB Form 337 (Oath of Office) * self-authored statement * ANG/U.S. Air Force Reserve Point Credit Summary (15 and 22 May 2015) * five pages of e-mail communication CONSIDERATION OF EVIDENCE: 1. After having prior military service in the U.S. Marine Corps and ARNG, the applicant enlisted the ANG on or about 20 February 2007. On 22 April 2015, he was discharged from the New Jersey ANG (NJANG). 2. The NGB Form 22 and Honorable Discharge Certificate issued upon his discharge from the NJANG on 22 April 2015 show he held the rank of CPT. The NGB Form 22 lists his date of rank as 6 May 2015. 3. On 23 April 2015, the applicant was appointed as a Reserve commissioned officer in the rank of first lieutenant (1LT)/O-2 in the New York ARNG (NYARNG). His Official Military Personnel File (OMPF) includes a DA Form 71 and NGB Form 337, both showing he swore his oath of office in the NYARNG in the rank of 1LT/O-2 on 23 April 2015 and that he authenticated these forms with his signature at this time. 4. The applicant provided a copy of a DA Form 71, which shows he completed his oath of office on 23 April 2015. He also provided email communication, dated 17 June 2015, which shows Technical Sergeant P____, his unit official, asked him to verify if the year "2016" showed on his oath of office was correct. In another email, dated 17 June 2015, Lieutenant Colonel D____, his unit commander, informed him he forwarded the DA Form 71 to CPT T____ for correction. 5. On 19 May 2015, NGB published Special Orders Number AP-100 announcing the applicant's promotion from 1LT to CPT in the ANG of the United States. His effective date and date of rank are shown as 6 May 2015. 6. The applicant provided two DFAS Forms 702 which show he held the rank of CPT during the pay periods ending 15 and 22 May 2015. 7. An NGB advisory opinion, dated 15 April 2016, from the Chief, Personnel Policy Division, states: a. the DA Form 71 with a date of 23 April 2016 was presumably an erroneous date; b. the applicant was accessed into the NYARNG on 23 April 2015 as a 1LT in accordance with his signed oath of office and State Order Number 124-0011, dated 4 May 2015; c. in a memorandum, dated 25 March 2016, the Director, Military Personnel, NYARNG, determined NJANG Order Number AP-100, dated 19 May 2015, directing the applicant's promotion to CPT was invalid; d. the NJANG separated the applicant on 22 April 2015; therefore, he could not be promoted to CPT after the fact; e. upon a search of the applicant's Army Military Human Resource Record, there is no record of any Federal recognition showing the applicant's appointment in the NYARNG; and f. he recommended disapproval of the applicant's request. 8. The ABCMR staff provided the applicant a copy of the advisory opinion for his comment or rebuttal. He did not respond. REFERENCES: 1. Army Regulation 614-120 (Inter-Service Transfer of Army Commissioned Officers on the Active Duty List) establishes policies and explains procedures for Regular and Reserve commissioned officers of the Army on the Active Duty List to apply for transfer to one of the other Uniformed Services. It also governs the determination of grade and date of rank when commissioned officers of other Uniformed Services are appointed as Army commissioned officers on the Active Duty List because of inter-service transfer. Paragraph 2-1(e) states "no officer will be transferred from one Uniformed Service and appointed in another Service with a precedence or relative rank higher than that held on the day before transfer." 2. Title 10, U.S. Code, section 12203, provides that appointments of Reserve officers in the grade of lieutenant colonel and below shall be made by the President. This authority has been delegated to the Secretary of Defense via Executive Order 13384, section 1, dated 27 July 2005. DISCUSSION: 1. Appointments of commissioned officers to the Reserve of the Army must be on a scroll approved and signed by the Secretary of Defense before a commissioned officer may take the oath of office. Scroll confirmation is rank specific for commissioned officers transitioning from the Regular Army to the Reserve of the Army and from another component to the Reserve of the Army. 2. The applicant was separated from the NJANG in the rank of 1LT. He was placed on a scroll for a Reserve of the Army commission as a 1LT and subsequently executed the oath of office and appointed in that grade on 23 April 2015. 3. Shortly after his 23 April 2015 appointment in the NYARNG, the NJANG promoted the applicant to CPT on 6 May 2015. It appears he subsequently performed unit training assemblies with his NJANG unit and received pay in the new CPT rank as shown on the leave and earnings statements he provided. However, NJANG officials confirm his promotion to CPT was invalid. The evidence of record confirms the applicant's 1LT appointment in the NYARNG on 23 April 2015 followed his 22 April 2015 separation from the NJANG. As a result, there is no basis to grant the requested relief in this case. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150019175 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150019175 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2