ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 21 October 2019 DOCKET NUMBER: AR20170003925 APPLICANT REQUESTS: through his Member of Congress, the following: a. correcting his retirement record to show he served continuously from active duty to the reserve; b. that he be promoted to the rank/grade of Major (MAJ)/O-4 with a date of rank in August 2016, with corresponding back pay, to include: * correcting his pay scale to reflect more than 13 years of service * receiving back pay for the last two years to include all of his drill weekends, annual trainings, and short term orders that he completed c. and a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) (On-line application) * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 10 July 2013 * Memorandum, subject: Appointment as a Reserve Commissioned Officer of the Army under Title 10, USC 12201 and 12203, dated 1 March 2017 * DA Form 71 (Oath of Office - Military Personnel), dated 11 July 2013 * DA Form 5691-R (Request for Reserve Component Assignment Orders), dated 17 June 2013 * DA Form 71, dated 5 March 2017 * Orders 183-0902, issued by Headquarters, U.S. Army Signal Center of Excellence, Fort Gordon, GA on 2 July 2013 * DA Form 5016 (Chronological Statement of Retirement Points), dated 9 March 2017 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states, in effect, the following: a. He left active duty in July 2013 and immediately joined the United States Army Reserve (USAR). He has since continuously served in the USAR. He was selected for promotion to MAJ in July 2016 by his unit – EUCOM Detachment 7; his unit immediately submitted a request for his promotion orders. b. In January 2017 it was discovered that promotion orders could not be produced due to him not having a valid Reserve appointment memorandum. In an attempt to have this error corrected by U.S. Army Human Resources Command (AHRC), it was determined he had not been scrolled into the Reserve by the Secretary of Defense. c. HRC has since had him scrolled and a new valid appointment letter with a new DA Form 71 was accomplished; however, it has left a gap in his service and he has still not been able to receive promotion orders to MAJ. This service gap resulted in a 3 year and 7 month break, causing him to lose pay adjustments, career progression opportunities, and time toward retirement. 3. Following prior enlisted service, the applicant graduated from Officer Candidate School and was appointed as a commissioned officer in the Regular Army on 27 April 2006. He was subsequently promoted to captain (CPT) on 1 April 2010. 4. DA Form 5691-R, dated 17 June 2013 shows he was counseled by a Reserve career counselor and executed a USAR enlistment, voluntarily accepting an assignment with the USAR Element, European Command, Devens, MA for a vacancy as a MI officer in the rank of CPT with an indefinite status. 5. The applicant was honorably released from active duty (REFRAD) on 10 July 2013 and transferred to the USAR Element European Command, Devens, MA. He completed 6 years, 7 months, and 19 days of net active service. The DD Form 214 he was issued shows in block 18 (Remarks) the entry, "REFRAD Pursuant to Unqualified Resignation Constitutes Officer's Acceptance of Appointment as a Reserve Commissioned Officer. No Oath is Required IAW 10 USC 12201 (a)(2) and DOD Policy." 6. The applicant provides and his record contains: a. Orders 183-0902, issued by Headquarters, U.S. Army Signal Center of Excellence, Fort Gordon, GA on 2 July 2013 that amended previous orders changing his assignment from "USAR Control Group (Reinforcement) to "USAR Element European Command, Devens, MA." It further noted he was required to report to his Reserve unit within 30 days of his REFRAD and that the authority was his Reserve Component Contract, dated 17 June 2013. b. A DA Form 71 that shows he executed a Reserve commissioned officer Oath of Office on 11 July 2013. c. A memorandum for the applicant from AHRC, subject: Appointment as a Reserve Commissioned Officer of the Army under Title 10, USC 12201 and 12203, dated 1 March 2017 shows: * he was appointed as a Reserve commissioned officer of the Army for an indefinite term upon acceptance in the USAR * acceptance of this appointment is concurrent with release from active duty (REFRAD) * his date of acceptance was 5 March 2017 with a scroll date/rank of 13 February 2017 and an effective date of 13 February 2017 * he will incur a break in service from 20130710 – 20170213 (3 years, 7 months, and 3 days) due to a confirmed scroll confirmation date of OSD 001559-17 of 20170213, CPT; his DORRES and PEBD will be adjusted as required, he may not resign his reserve status until completion of a total of 8 years of service d. A DA Form 71 that shows he executed a Reserve commissioned officer Oath of Office on 5 March 2017. e. A DA Form 5016, dated 9 March 2017 that shows he had 10 years and 1 day of continuous military service from 22 March 2006 to 21 March 2016. An updated DA Form 5016, in his records, show he has 13 years and 1 day of continuous military service from 22 March 2006 to 21 March 2019. 7. In connection with the processing of this case, an advisory opinion was obtained on 23 September 2019 from Chief, Officer Promotions Board Announcements, Support and Promotion Orders, HRC, wherein he stated: a. Based on a review of the information provided, our records and the systems available to HRC Officer Promotions, we find that [applicant's] request does have merit. b. It appears that [applicant] was not properly accessed onto the Reserve Active Status List until several years after he was released from active duty or the Active Duty List due to no fault of his own. During this time he was considered and recommended for promotion to Major on the FY16, MAJ Army, Non Active Guard Reserve, Army Promotion Selection Board. c. Had this delay not occurred it would have been more than likely that [Applicant] would have been promoted to Major (unless proven otherwise ineligible) at the time of his unit's request of 5 August 2016 via HQ AHRC Form 56-R [Promotion Qualification Statement]. d. Therefore, in fairness, we recommend that he be granted full relief. However, the ABCMR's decision to direct our office to promote him must first be met with an approved de facto assessment appointing him as a Reserve Commissioned Officer effective 11 July 2013. 8. A copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal. On 9 October 2019, in an electronic mail he stated he had no comments. 9. The applicant's request for a personal appearance hearing was carefully considered. However, by regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found partial relief is warranted. The Board further determined the evidence of record and independent evidence provided by the applicant are sufficient to render a fair and equitable decision at this time without a personal appearance before the Board. 2. The Board agreed that, through no fault of his own, the applicant was not properly appointed as a Reserve commissioned officer when he left active duty on 10 July 2013. He took the oath of office as a Reserve commissioned officer on 11 July 2013, but the scroll confirming his appointment was not published until 13 February 2017, resulting in a break in service of 3 years, 7 months, and 3 days. The Board concluded that, as a matter of equity and justice, the effective date of his appointment date as a Reserve commissioned officer should be adjusted to 11 July 2013 and he should receive any pay and allowances he is due based on this correction. 3. Although the applicant was recommended for promotion to MAJ, he was not actually appointed to the higher grade. The Board noted that appointing him to MAJ would exceed the Board's authority. However, the Board recommended that if he may be appointed by the appropriate presidential or DOD authority to the grade of MAJ based on his recommendation for promotion by the FY16, MAJ Army, Non Active Guard Reserve, Army Promotion Selection Board, then that action should proceed. If it is not possible to appoint him to the grade of MAJ based on his selection by the FY16 board, then his record should be referred for consideration by a Special Selection Board under the criteria for the FY16, MAJ Army, Non Active Guard Reserve, Army Promotion Selection Board and any subsequent years he would have been eligible for consideration. 4. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :RC :PW :MW 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. showing the effective date of his appointment as a Reserve commissioned officer is 11 July 2013 and paying him any pay and allowances he is due as a result of this correction. b. recommending that the appropriate presidential or DOD authority appoint him to the grade of MAJ based on his recommendation for promotion by the FY16, MAJ Army, Non Active Guard Reserve, Army Promotion Selection Board, if doing so is within the authority of the Secretary of the Army. 2. If he cannot be appointed to the grade of MAJ as a result of the aforementioned recommendation for promotion, refer his record for consideration by a Special Selection Board under the criteria for the FY16, MAJ Army, Non Active Guard Reserve, Army Promotion Selection Board and any subsequent years he would have been eligible for consideration based on his corrected record. 3. The Board further determined the evidence presented may be insufficient to warrant a portion of the requested relief. As a result, if he cannot be promoted to MAJ/O-4 based on his corrected record, the Board recommends denial of so much of the application that pertains to promoting him to MAJ/O-4 pending the findings of a Special Selection Board. 1/10/2020 X Roberta B. Crissy CHAIRPERSON Signed by: CRISSY.ROBERTA.BAYNES.1014173532 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. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Title 10, USC, section 12201, states, in pertinent part, the following: a. To become an officer of a reserve component a person must be appointed as a Reserve of an armed force in a grade corresponding to a grade authorized for the regular component of the armed force concerned and, except as provided in paragraph (b), subscribe to the oath. b. If an officer is transferred from the active-duty list of an armed force to a reserve active-status list of an armed force in accordance with regulations prescribed by the Secretary of Defense, the officer is not required to subscribe to the oath referred to in paragraph (a) in order to qualify for an appointment under that paragraph. 3. Title 10, USC, section 12203, states the following: a. Appointments of reserve officers in commissioned grades of lieutenant colonel and commander or below, except commissioned warrant officer, shall be made by the President alone. Appointments of reserve officers in commissioned grades above lieutenant colonel and commander shall be made by the President, by and with the advice and consent of the Senate. b. Subject to the authority, direction, and control of the President, the Secretary concerned may appoint as a reserve commissioned officer any regular officer transferred from the active-duty list of an armed force to the reserve active-status list of a reserve component. c. Appointments of Reserves in commissioned grades are for an indefinite term and are held during the pleasure of the President. 4. Army Regulation 135-100 (Appointment of Commissioned and Warrant Officers of the Army), dated 1 September 1994 establishes responsibility and provides procedures for the appointment of commissioned and warrant officers in the Reserve Component of the Army. It states a commissioned officer of a regular component who is discharged or who resigns may be appointed as a Reserve commissioned officer. The appointment will be in the grade, with time in grade for promotion purposes equal to the amount of time in the permanent grade held as a regular officer at the time of discharge or resignation. 5. Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), dated 13 July 2004 provides policy for selecting and promoting commissioned officers of both the Army National Guard of the United States (ARNGUS) and the U.S. Army Reserve (USAR), and warrant officers of the USAR. This regulation also covers promotion eligibility and qualification requirements, board schedules and procedures, and procedures on processing selection board recommendations. 6. Army Regulation 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. // NOTHING FOLLOWS //