RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           6 May 2003
      DOCKET NUMBER:   AR2003088695


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. Jessie B. Strickland          |     |Analyst              |


  The following members, a quorum, were present:

|     |Mr. Thomas D. Howard, Jr.         |     |Chairperson          |
|     |Mr. James E. Anderholm            |     |Member               |
|     |Mr. Ronald J. Weaver              |     |Member               |

      The applicant and counsel if any, did not appear before the Board.

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his report of separation (DD Form 214) be
corrected to show full active duty service credit for the period of 10
January 1999 through 4 January 2001, that he was honorably discharged due
to completion of required service, and that he was appointed in the rank of
major, with entitlement to all back pay and allowances.  He also requests
that his evaluation reports covering the period from 8 January 1999 to 30
April 2000, reflect the rank of major, that he be issued an officer
evaluation report (OER) for the period of 1 May 2000 to 4 January 2001, in
the rank of major, that his awards covering the period 1 August 1999 to 31
October 2000 be corrected to reflect the rank of major and that any other
documents present in his records during the period of 10 January 1999 to 4
January 2001 be corrected to reflect his rank as major.

2.  The applicant states through an extensive and voluminous application,
in effect, that he was promoted to the rank of lieutenant commander (O-4)
in the Naval Reserve on 1 December 1996 and while attending law school, he
was recruited for entry into the Army Reserve (USAR) as a Judge Advocate
General (JAG) officer.  At the time he inquired as to what grade he would
be accessed and was informed that he would be accessed as a captain and
given credit for his prior service, which would make him eligible for
promotion back to the pay grade of O-4 with no problems.  He continues by
stating that when he initially received his orders and oath of office, they
indicated that he was being accessed as a first lieutenant (1LT) and he
contacted officials at the Judge Advocate Recruiting Office (JARO) and
informed them that he was supposed to be accessed as a captain.  He was
informed at the time that a corrected copy would be forwarded.  He
proceeded to the basic course at Fort Lee without taking an oath.  However,
on 20 January 1999, he was informed that he had to sign his oath of office.
 Inasmuch as the new oath of office had not yet arrived, the operations
officer completed a new oath of office by hand for commissioning in the
rank of captain and presuming that he had been given the correct
information, he signed the oath of office as a captain, that was back-dated
to 10 January 1999, the date the basic course started.  He further states
that he was subsequently told that he could not be considered for promotion
to the rank of major until he had served a year; however, after several
futile attempts at trying to get his records corrected to reflect his prior
service performance he discovered that he had not been discharged from the
Navy, which made his commission in the USAR void.  Additionally, after
approximately 2 years of trying to straighten out the errors, he was told
that he could be appointed in the rank of major and that it would incur a
new obligation and he would not receive credit for the time he had already
served.  If he refused to accept the new appointment in the rank of major
he would be released from the Army, as the Army had no legal hold on him.

3.  He goes on to state that after weighing all of his options and
considering all of the hardships his family had endured as a result of the
errors made by the Army, he elected to not sign the new oath and go back to
the Naval Reserve.  It was not until he received his DD Form 214 on 30
November 2000, that he realized that he did not receive credit for the 1
year, 10 months and 21 days of active service he had performed and that his
service was not characterized.  Again, the Army failed to submit the
necessary documents (DD Form 368) to the Navy to rescind his interservice
transfer and as a result, it was not until 5 January 2001 that the Navy
approved his request for reappointment and restored him to his original
date of rank as a lieutenant commander.  However, because of his break in
service, he could not compete for promotion to the pay grade of O-5 until a
year later.  He was promoted a year later by the 2003 selection board and
contends that had the Army acted properly, he would have been promoted a
year earlier with his peers.  Furthermore, he contends that the Army was in
violation of the law by commissioning him in a rank lower than he
previously held.

4.  The applicant provides an extensive array of documents (59 enclosures)
that are indexed with the case.

CONSIDERATION OF EVIDENCE:

1.  He enlisted in the Naval Reserve on (31 January 1986 and served until
he enlisted in the Regular Navy on 7 April 1986.  On 31 July 1986, he
completed Naval Officer Candidate training, and was commissioned as a
second lieutenant and ordered to active duty, where he remained until 31
July 1994, when he was released from active duty and was transferred back
to the Naval Reserve (USNR).

2.  He remained in the USNR and was promoted to the pay grade of O-4 on
1 December 1996.

3.  On 27 April 1997, the Chief, Personnel, Plans and Training Office of
the Department of the Army (DA) Office of the Judge Advocate General
(OTJAG) dispatched a letter to the applicant addressing him as a lieutenant
commander.  The letter offered him a commission in the JAG Corps (JAGC) and
informed him that he would incur a 3-year service obligation.

4.  On 4 December 1998, the commandant of the JAG School dispatched a
letter to the applicant and addressed him as a major.  The letter
congratulated him on his selection for a tour of duty in the JAGC and
welcomed him to the Judge Advocate Officer Basic Course (JAOBC).

5.  On 29 December 1998, the Total Army Personnel Command (PERSCOM)
published a memorandum of Appointment as a Reserve Commissioned Officer of
the Army.  The memorandum authorized the applicant to be commissioned as a
USAR first lieutenant (1LT) in the JAGC with 8 years, 4 months and 9 days
of constructive credit.  Additionally, the PERSCOM published orders that
ordered the applicant to active duty and transferred him to Fort Lee,
Virginia and Charlottesville, Virginia, to attend the JAOBC, en route to
Europe.  His first report date was to Fort Lee on 10 January 1999.

6.  On 9 July 1999, the applicant submitted a request to be considered for
promotion to the rank of major by the Fiscal Year 2000 Promotion Selection
Board.  His request was endorsed throughout his entire chain of command, to
include the commanding general of the Reserve Command (USARC).  His request
was disapproved because he did not have any active duty evaluation reports
that would warrant selection to the next higher grade and it was
recommended that he appear when scheduled in order to build a solid
performance file.

7.  On 18 October 1999, the applicant responded to the denial of his
request and asserted that he had over 9 years of active duty in the Navy
and had tried on four separate occasions to have his records updated, to
include sending copies by Certified Mail on 13 August 1999.

8.  On 5 November 1999, he was awarded the Army Achievement Medal (AAM) for
the period of 1 August to 31 August 1999, while assigned to the USARC.  On
6 November 2000, he was awarded the Meritorious Service Medal (MSM) for the
period of 22 April 1999 to 31 October 2000 for meritorious service while
assigned to the USARC.

9.  Meanwhile, the applicant filed a request for redress under Article 138,
Uniform Code of Military Justice (UCMJ) for an improper reduction in rank,
which he believed to be in violation of laws and regulations.  He also
requested that in lieu of his revocation of his Reserve appointment, he be
discharged so that he could return to his rank of Lieutenant Commander in
the Naval Reserve.  His request was returned without action because it was
not within the jurisdiction of the USARC.  The applicant also filed an
Inspector General Action Request, which was forwarded to the Department of
the Army, Office of the Inspector General, which apparently was deferred to
the Total Army Personnel Command (PERSCOM).  However, there is no
indication of a response in the available records.

10.  On 3 July 2000, the Department of the Navy notified the applicant that
his discharge from the USNR was effective 9 January 1999.

11.  On 8 November 2000, the OTJAG submitted a memorandum to the Commander,
Navy Personnel Command, which explained, in effect, that the applicant had
originally been accessed into the Army on 8 January 1999, erroneously as a
first lieutenant.  The Army attempted to correct the erroneous appointment
by issuing a new appointment in the rank of captain on 9 May 2000, which
was also erroneous, because he should have been appointed to the rank of
major.  On 2 October 2000, the Army tendered him a new appointment to the
grade of major.  He declined the appointment and by mutual agreement, he
was released from the custody and control of the Army, effective 30
November 2000.  The memorandum also stated that he never served under a
valid appointment and that action by a corrections board was required to
grant him service credit.  The memorandum also stated that the applicant
should be credited with active duty service in the JAGC from 8 January 1999
to 30 November 2000.

12.  On 30 November 2000, he was released from the custody and control of
the Army under Secretarial Authority with no characterization of service.
His report of separation (DD Form 214) indicates that he served on active
duty from 10 January 1999 through 30 November 2000; however, he was not
given active duty credit in block 12c, for that service.  His awards of the
MSM and AAM were included.  He also did not receive an OER for the period
of 1 May 2000 to 30 November 2000.  The applicant refused to sign his DD
Form 214.

13.  The applicant submitted a request for reappointment in the USNR on
30 November 2000 and on 29 December 2000, his request was approved.  On
5 January 2001, he was appointed as a lieutenant commander in the USNR,
with a date of rank of 1 December 1996.

14.  In the processing of this case a staff advisory opinion was obtained
from the OTJAG which opined, in effect, that the applicant was entitled to
correction of his records to reflect the rank of captain and that
discretionary authority existed at the time to appoint him to the rank of
major.  The opinion also stated that there are cases of at least two Naval
officers who benefited from the discretionary authority and who were
appointed with less than 14 years of prior commissioned service, which
suggests that there was ample authority, especially considering the late
attempt to do so, to correct the applicant's records to reflect his service
credit in the rank of major.

15.  The advisory opinion was provided to the applicant who responded to
the effect that while he concurs with the ultimate conclusion of the OTJAG,
that he believes that his appointment was mandatory, vice discretionary,
and that he should have been honorably released from active duty on 30
November 2000 and discharged from the active status list USAR on 4 January
2001, so as to prevent any break in service and allow him to compete for
promotion in the USNR with his peers.

16.  On 5 January 2000, the recruiting officer who recruited the applicant
dispatched a letter to the Assistant Judge Advocate General (AJAG) of the
Army explaining her disappointment in the applicant's situation.  She went
on to explain that at the time she talked to JAGC officials, it was
recommended that he enter the JAGC as a captain so that he would be more
competitive for promotion; however, the recruiting officer reminded the
AJAG that he had indicated that he would likely be better off as a major,
due to previous treatment of FLEPS and other non-traditional officers.
However, to date the issue had yet to be resolved.

17.  Department of Defense (DOD) Directive 1312.3. paragraph 4.3.2,
provides, in pertinent part, that a person who is a former commissioned
officer may be appointed as a Reserve commissioned officer and may be
appointed as a Reserve commissioned officer and may be placed on the
Reserve Active Status List (RASL) in the equivalent grade to the grade
previously served.  Paragraph 4.3 of that directive provides that persons
granted service credit and placed on the Active Duty List (ADL) of a
military service may have an entry grade determined by comparing entry
grade credit with the appropriate promotion phase points of the military
service and officer category concerned.

18.  Army Regulation 135-100, paragraph 1-9a(6), in effect at the time,
provided that a former commissioned officer appointed as a Reserve officer
after 14 September 1981, in a lower grade than the grade held when
previously discharged, may be appointed in a Reserve grade equal to the
officer's former grade.  Such appointments required an application to the
PERSCOM (now known as the Human Resources Command – Alexandria).

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record clearly establishes that the applicant was
serving in the rank of lieutenant commander in the USNR, a rank that is
equivalent to a major/0-4 in the Army.

2.  Although there is no evidence of a written commitment on the part of
the Army that he would be accessed into the Army in the same rank, there is
evidence to suggest that he was led to believe that he would enter as a
captain and be promoted back to the rank of 0-4 in the JAGC shortly after
he accepted an appointment in the Army.

3.  However, through a series of administrative errors, his original
appointment was published to reflect an appointment in the rank of first
lieutenant (0-2).  After refusing to accept an appointment as a 0-2, he was
given an appointment as a captain; however, he was subsequently informed
that he could not compete for promotion back to the rank of major until he
had served on active duty for a period of 1 year.
4.  After almost a 2-year period of attempting to correct the error on the
part of the Army, he was informed that he should have been originally
appointed as a major and that he could accept a new appointment as a major
since he had now been properly discharged from the USNR; however, it would
require another      3-year service obligation and his previous service
would not count.

5.  The applicant elected to decline the new appointment and was released
from the custody and control of the Army on 30 November 2000, with no
credit for any active service performed.  He subsequently accepted an
appointment back into the USNR in the pay grade of 0-4 on 5 January 2001,
which resulted in a break in service (1 December 2000 to 4 January 2001).

6.  The evidence in this case suggests that the applicant agreed to an
interservice transfer from the USNR (while serving in the pay grade of 0-4)
to the USAR (on active duty) with the understanding that he would not lose
the benefits that he had already attained.  However, through a series of
administrative errors, the applicant was not properly accessed into the
Army initially (Army did not receive discharge from USNR before
commissioning in the USAR), he was not accessed in the proper rank, and as
a result was not only denied the pay and benefits that he was entitled to
receive, he also did not receive active duty credit for the time he served.


7.  Accordingly, it would be in the interest of equity to correct his
records as an exception to policy, to show that he was accessed in the rank
of major on 10 January 1999, that he served until he was honorably released
from active duty (REFRAD) on 30 November 2000 (vice released from custody
and control of the Army), that he was transferred to the USAR Control Group
(Reinforcement), that he served 1 year, 10 months and 21 days of active
service, and that he was discharged from the USAR on 4 January 2001.

8.  Additionally, all documents (OERs and awards) that the applicant
received while on active duty should be corrected to reflect the rank of
major and he should receive all pay and allowances in that rank, to which
he is entitled.

9.  The applicant's contention that he should be issued an evaluation
report for the period of 1 May 2000 to 4 January 2001 has been noted;
however, given the time that has elapsed since that time, it would be
impractical to do so, especially since he was released on 30 November 2000.
 Accordingly, the period of 1 May to 30 November 2000 should be deemed
unrated and an appropriate non-prejudicial statement should be entered in
its place.

BOARD VOTE:

__tdh___  __jea___  __rjw___  GRANT 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

      a.  by showing that he was appointed as a USAR major with a concurrent
call to active duty on 10 January 1999;


      b.  by showing that he served in the rank of major until he was
honorably REFRAD in the rank of major on 30 November 2000 and was
transferred to the USAR Control Group (Reinforcement);

      c.  by showing that he served 1 year, 10 months of 21 days of active
service;

      d.  by showing that he was honorably discharged from the USAR on
4 January 2001;

      e.  by correcting all documents (especially OERs and awards) to show
that he served in the rank of major;

      f.  by paying the applicant all back pay and allowances in the rank
of major from 10 January 1999 through 30 November 2000; and

      g.  by providing the applicant a nonprejudicial statement indicating
that the period from 1 May 2000 through 30 November 2000 is deemed a
nonrated period of service, to be placed in his records.








2.  The Board further determined that 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
issuing the applicant an OER for the period of 1 May 2000 through 4 January
2001.




            Thomas D. Howard, Jr.
            ______________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2003088695                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040506                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(GRANT)                                 |
|REVIEW AUTHORITY        |                                        |
|ISSUES                  |14/APPT                                 |
|1.102.0000              |                                        |
|2.102.0200              |16/GRADE                                |
|3.100.0000              |1021/ADMIN MATTERS                      |
|4.110.0000              |189/CORR 214                            |
|5.                      |                                        |
|6.                      |                                        |