BOARD DATE: 25 July 2013 DOCKET NUMBER: AR20120015591 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, to: * adjust his date of appointment and date of rank (DOR) as a second lieutenant (2LT) to 1 October 2011 * reimburse him a debt of $844.61 from the Defense Finance and Accounting Service (DFAS) 2. The applicant states: a. Ms. H____, U.S. Army Human Resources Command (HRC), instructed him to execute a DA Form 71 (Oath of Office - Military Personnel) and submit his separation packet through his unit which he did on 1 October 2012. b. He followed up on the action several times from October through December 2011 and was told HRC still needed his paperwork. Upon receiving his separation he submitted it to HRC and in January 2012, HRC informed him that they could no longer accept backdated orders and the process was restarted. c. Due to the inactivity or false direction of Ms. H____ and her staff at HRC, he was placed in the Individual Ready Reserve (IRR) instead of being transferred to his unit on 1 October 2011. He returned from Iraq on 2 July 2011 and was scheduled to attend a Yellow Ribbon Conference in Chicago, IL and Denver, CO. Orders, lodging, and tickets had already been procured and he attended and was paid for the duty performed. d. DFAS later found the error and created a debt of $844.61 due to him performing duty while in the IRR. Neither his unit nor he was aware that he had been placed in the IRR since no orders were generated. The only way to remove the debt is to change his DOR to 1 October 2011. 3. The applicant provides: * a self-authored statement * two DA Forms 71 * a memorandum * a DA Form 4651 (Request for Reserve Component Assignment or Attachment) * two pages of email * Orders 11-307-00070 * Orders 12-027-00051 * Orders C-01-201318 CONSIDERATION OF EVIDENCE: 1. The applicant's records contain Orders 11-307-00070, issued by Headquarters, 88th Regional Support Command, Fort McCoy, WI, dated 3 November 2011, which honorably discharged the applicant from the U.S. Army Reserve (USAR) in the rank/grade of staff sergeant/E-6 effective 30 September 2011. 2. The applicant's records contain a DA Form 71 which shows he was appointed as a Reserve Commissioned Officer in the rank/grade of 2LT/O-1 on 1 October 2011. 3. The applicant's records contain Orders 12-027-00051, issued by Headquarters, 88th Regional Support Command, Fort McCoy, WI, dated 27 January 2012, which amended Orders 11-307-00070 to show the applicant was discharged from the USAR effective 26 January 2012 instead of 30 September 2011. 4. The applicant's records show he was appointed as a Reserve Commissioned Officer in the rank/grade of 2LT/O-1 and he executed a DA Form 71 on 27 January 2012. 5. In the processing of this case, on 25 March 2013, an advisory opinion was received from the Interim Chief, Officer Accessions Branch, HRC. The advisory official opined the following: a. The applicant was selected for appointment by the May 2010 USAR Direct Appointment Board. He was sent notification and instructions for the completion of his appointment on 10 September 2010. Due to his mobilized status, the required order to complete his appointment was received on 28 November 2011 with a 30 September 2011 separation effective date. b. On 10 January 2012, HRC was placed on a moratorium of producing "back dated" orders which would have been required to process a 1 October 2011 effective appointment. Due to this HRC directive, the applicant's separation order was amended to 26 January 2012 to avoid a break in service. Processing of his appointment memorandum and re-execution of his oath of office reflecting the 27 January 2012 effective date was completed. c. The discrepancy can be corrected by an officially directed ABCMR decision directing a defacto appointment to 1 October 2011 for the applicant. 6. On 16 April 2013, the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal. He did not respond. 7. The applicant provides no evidence to corroborate his claim that DFAS created a debt in the amount of $844.61 or that he subsequently paid said amount to clear his debt. 8. Per Title 10, U.S. Code, section 1552, the ABCMR 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. 9. 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. DISCUSSION AND CONCLUSIONS: 1. The applicant's request to amend his date of appointment and DOR to 2LT from 27 January 2012 to 1 October 2011 has been carefully examined. 2. The applicant was selected for appointment by the May 2010 USAR Direct Appointment Board and he executed a DA Form 71 which shows he was appointed as a Reserve Commissioned Officer in the rank/grade of 2LT/O-1 on 1 October 2011. 3. Due to his mobilized status, the required order to complete his appointment was received by HRC on 28 November 2011 with an effective date of separation of 30 September 2011. HRC is unable to "backdate" the effective date of appointment of an officer; therefore, he was subsequently appointed on 27 January 2012. 4. 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 be submitted to the Secretary of Defense. The ABCMR may only correct Army records. The Board has no authority to correct records created by the other Services or the Department of Defense. 5. Any correction by the ABCMR must comport with other laws. The Board may not ignore a requirement contained in, or outcome dictated by, another statute. Typically, the ABCMR achieves this by changing an operative fact in the record, thereby making a correction in compliance with that statute. Where officer personnel issues are involved that require approval by the Secretary of Defense, the Board's hands are often tied. 6. While 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. 7. Consequently, based on the authorities cited above, any correction to the applicant's effective date of appointment to 2LT would effectively amend the Secretary of Defense's action and goes beyond the authority of this Board. 8. However, when a valid appointment has been accomplished, the Board can take action to grant an officer an earlier DOR if warranted by the facts in the case. Based upon this guidance, and as a matter of equity, it would be appropriate to grant the applicant partial relief in this case by amending his DOR to 2LT to 1 October 2011 with an effective date of appointment remaining 27 January 2012. 9. In addition, the applicant provides no evidence to corroborate his claim that DFAS created a debt in the amount of $844.61 or that he subsequently paid said amount to clear his debt. 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 amending the applicant's DOR to 2LT to 1 October 2011. 2. The Board further determined that the evidence presented was 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 changing the effective date of his appointment to 2LT to 1 October 2011, and to reimburse him a debt of $844.61. _______ _ 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) AR20120015591 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20120015591 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1