RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            3 February 2005
      DOCKET NUMBER:   AR2004106936


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Melvin H. Meyer               |     |Chairperson          |
|     |Ms. Linda M. Barker               |     |Member               |
|     |Mr. Larry J. Olson                |     |Member               |

      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 captain date of rank of 26 October 2000
be restored.

2.  The applicant states that he believes Army Regulation 135-100,
paragraph   3-12 is being interpreted incorrectly and that he is losing
credit for one year of commissioned service unjustly.  He states he entered
the U. S. Army Reserve (USAR) in September 1989 as an enlisted Soldier.  On
15 August 1994, he entered law school.  He was enrolled in the Reserve
Officers' Training Corps (ROTC) at the time and was commissioned, as a
second lieutenant in Military Intelligence, on 9 May 1996.  He graduated
from law school on 9 May 1997.  He was promoted to captain on 26 October
2000 through a unit vacancy promotion. He was accepted into the Judge
Advocate General's Corps (JAGC) on 11 March 2003.  At that time he had
served as a captain for 2 years, 7 months, and           10 days yet the
JAGC only credited him with 1 year, 8 months, and 1 day.

3.  The applicant states that his loss of an entire year of commissioned
service   is based on the JAG Recruitment office's interpretation of Army
Regulation    135-100, paragraph 3-12 and tables 3-3, 3-4, and 3-5.  After
first telling him he would enter as a first lieutenant, even though he had
already been a captain for over two and a half years, they told him he
could receive constructive credit for his law school time as outlined under
Table 3-4.  Because he was commissioned with a year of law school
remaining, however, he was told that he could only get credit for 2 years.
Believing he would receive 2 years credit for law school, he agreed in
principle to accept his appointment.  Then, he saw he was only credited
with 1 year, 5 months, and 1 day time in grade.

4.  The applicant states he could be helped in several ways.  He could be
credited with the 2 years and 5 months he actually served as a captain.  He
could have been given credit for 2 years of law school actually completed.
Preferably, he would like the full consideration allowed under Army
Regulation 135-100, paragraph 13-1, paragraph 4 which states, "An officer
completing an educational program qualifies for constructive service credit
under [table] 2(a) above, while in an active commissioned status, in less
than 3 years may be credited with constructive credit in the amount by
which 3 years exceeds the time spent in the qualifying educational program
in an active status."  While the regulation is hard to read it plainly
means that if you go to law school while you are an officer you can be
given credit of both "up to three years."

5.  The applicant provides an extract of Army Regulation 135-100; his
original captain promotion memorandum; a DD Form 214 (Certificate of
Release or Discharge from Active Duty) for the period ending 4 December
2002; and his JAGC appointment application approval memorandum.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the USAR in September 1989.  He apparently
enrolled in ROTC and entered law school about the same time in 1994.  He
was apparently appointed a second lieutenant in the USAR, Military
Intelligence on    9 May 1996 (reassignment orders show he was released
from the ROTC Accession Detachment and assigned to the USAR Control Group
(Annual Training) effective 11 May 1996.  His law degree was conferred 10
May 1997.

2.  The applicant transferred to the Army National Guard on an unknown date
and was promoted to captain, Army National Guard, Military Intelligence on
     26 October 2000.

3.  The applicant applied for appointment in the JAGC.  On 11 March 2003,
his application was approved and he was given a time in grade of captain of
1 year, 5 months, and 1 day as of 11 March 2003.  He signed his oath of
office on        23 March 2003.

4.  In the processing of this case, an advisory opinion was obtained from
the Chief, Reserve Component Judge Advocate Recruiting.  That individual
opined that Army Regulation 135-100 was interpreted correctly and the
applicant was given the correct date of rank based on his prior years of
commissioned service.  At the time he was appointed [in the JAGC], he had 8
years, 5 months, and 1 day of total service based on a combination of
credit for time in law school prior to his original commission and his
commissioned service up to his JA appointment.  He could not be given both
constructive credit and commissioned credit for the same time period.  That
individual also noted that the fact the applicant had a different date of
rank in his prior branch has no bearing on his appointment date of rank as
a JA which is a new appointment and not simply a branch transfer.

5.  Army Regulation 135-100 (Appointment of Commissioned and Warrant
Officers of the Army) prescribes policy and procedures for the appointment
of commissioned and warrant officers in the Army National Guard of the
United States and the USAR.  Paragraph 3-12a(1) states that persons
receiving original appointments as Reserve officers of the Army with
assignment to the JAGC will
be appointed in the highest grade entitled under Title 10, U. S. Code,
section 3359 (repealed in 1996 and moved to section 12207) as follows:

      Table 3-3:  if granted commissioned service credit of 7 years or more
but less than 14 years, then appointment grade will be captain.  A Note to
this table states, "In determining the appointment grade of a prospective
JAGC officer, the years of commissioned service credit will be the sum of
all credit awarded for constructive service credit and prior commissioned
service under paragraphs (2), (3), and (4) below.  A period of time will be
counted only once when computing credit (emphasis added)…"

6.  Army Regulation 135-100, paragraph 3-12a(2) states, in pertinent part,
that constructive service credit will be computed and awarded as follows:

      Table 3-4:  3 years credit for award of the first professional law
degree.

7.  Army Regulation 135-100, paragraph 3-12a(3) states that credit for
prior commissioned service will be computed as follows:

      Table 3-5(a):  1 year credit for each year of active duty
commissioned service to include periods of annual training or other active
duty for training performed while a member of any component of the military
services; and

      Table 3-5(b):  1 year credit for commissioned service in an active
status while serving in any component of the military service, but not on
extended active duty.

8.  Army Regulation 135-100, paragraph 3-12a(4) states, "An officer
completing an educational program [who] qualifies for constructive service
credit under (2)(a) above, while in an active commissioned status, in less
than 3 years may be credited with constructive service credit in the amount
by which 3 years exceeds the time spent in the qualifying educational
program in an active status."

9.  Army Regulation 135-100, paragraph 3-12b(1) states that the date of
rank of an officer commissioned in the Reserve of the Army and assigned to
the JAGC is the date of appointment.  The date of rank will be further
backdated by the period of commissioned service credit awarded under a
above.  This is in excess of that amount used to establish the officer's
appointment grade.

10.  Title 10, U. S. Code, section 12207(d) states that if the Secretary of
Defense determines that the number of qualified judge advocates serving on
the active-duty list of the Army…in grades below…major is critically below
the number needed by that armed force in those grades, the Secretary of
Defense may authorize the Secretary...concerned to credit any person who is
receiving an original appointment with a view to assignment to the JAGC of
the Army… with a period of constructive service in such an amount (in
addition to any amount credited such person under subsection (b)
(education, e.g., requiring a law degree for appointment)) as will result
in the grade of such person being that of captain…

11.  Title 10, section 12207(e) states that constructive service credited
an officer under subsection (b) or (d) shall be used only for determining
the officer's initial grade as a reserve officer, rank in grade, and
service in grade for promotion eligibility.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence to show Army Regulation 135-100, paragraph 3-12 is
being interpreted incorrectly or that the applicant is losing credit for
one year of commissioned service unjustly.

2.  Army Regulation 135-100, Table 3-3 clearly states that a period of
service used in computing constructive credit will be counted only once.

3.  Army Regulation 135-100, paragraph 13-1, paragraph 4 is fairly clear in
its meaning:  If an officer attends law school while in an active
commissioned status, and for some reason completes law school in less than
3 years, the officer may still be credited with 3 years constructive
service.  The Note in Table 3-3 about counting a period of time only once
in computing constructive service still applies.

4.  The applicant was fully aware on 11 March 2003 that he would be
credited only with 1 year, 5 months, and 1 day time in grade as a captain.
He had the option not to accept a JAGC appointment and retain his original
captain date of rank as a Military Intelligence officer.  However, he took
his new oath of office as a JAGC captain on 23 March 2003.

5.  Constructive service credit is basically used as an appointment and
promotion tool.  When the applicant was in Military Intelligence, he
competed against other Reserve Component Army Promotion List officers for
promotion.  Once he accepted appointment as a JAGC captain, his peers and
competitors became other JAGC captains.  The rules for appointment level
the competition base for all new JAGC appointees in their new branch.
There is no injustice or inequity in doing so.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__mhm___  __lmb___  _ljo____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.




            __Melvin H. Meyer_____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004106936                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050203                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |102.07                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]