RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            17 August 2006
      DOCKET NUMBER:   AR20050016237


      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. Richard Dunbar                |     |Chairperson          |
|     |Mr. Dean Camarella                |     |Member               |
|     |Ms. Rea Nuppenau                  |     |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 Mandatory Removal Date (MRD) from the
United States Army Reserve (USAR) be changed from 1 February 2005 to 18
April 2006, that he be credited for weekend drills and 14 days of summer
training and entitlement to all back pay and allowances from the period of
his removal to his new MRD.

2.  The applicant states, in effect, that his MRD was incorrectly adjusted
to 1 February 2005 instead of 18 April 2006 because it did not account for
deducting the time (992 days) he spent in law school.  He goes on to state
that the Statute provides that time spent in attendance at law school does
not count towards the MRD and that The Judge Advocate General (TJAG) has
misinterpreted the Statute.  He continues by stating that the MRD is also
incorrect because he did not complete 30 years of commissioned service on
that date.

3.  The applicant provides a two-page explanation of his position, his
retirement orders and separation documents, a request for recalculation of
his MRD, a request for extension of his MRD, a copy of his oath of office,
a copy of his Juris Doctoris Diploma, and a letter from the registrar of a
university verifying his attendance at law school from August 1976 to May
1979.

CONSIDERATION OF EVIDENCE:

1.  He was born on 7 May 1950 and originally enlisted in the United States
Naval Reserve (USNR) on 24 March 1971.  On 15 December 1972, he was
commissioned as an Ensign in the USNR.  He was ordered to active duty and
served until he was honorably released from active duty (REFRAD) as a
lieutenant junior grade (LTJG) on 10 December 1975 due to failure to be
promoted to the next higher grade.  He was transferred to the USNR Control
Group (Reinforcement).

2.  He graduated from law school on 13 May 1979 and on 7 January 1980, he
was honorably discharged from the USNR.

3.  On 8 January 1980, he was commissioned as a United States Army Reserve
(USAR) Judge Advocate General (JAG) captain and was ordered to active duty
on 13 January 1980 for a period of 3 years.  He was honorably released from
active duty on 6 April 1983 and was transferred to the USAR Control Group
(Reinforcement).   In November 1984, he was transferred to the USAR Control
Group (Ready).  His 20-Year letter was issued on 10 November 1995 and he
was promoted to the rank of Colonel on 25 October 2000.

4.  On 29 April 2003, the Chief, Legal Services Personnel Management Office
of the Army Reserve Personnel Command in St Louis, Missouri, dispatched a
memorandum to the Office of The Judge Advocate General recommending that
the applicant’s MRD not be extended.  It further opined that the
applicant’s MRD was supposed to be 1 January 2003 and that his attendance
at law school did not change his MRD because he was a USNR commissioned
officer that was not participating when he attended law school.  Because he
was not on an educational delay program at the time, the provisions of the
statute exempting the period of law school from the MRD did not apply in
his case.

5.  On 21 November 2003, The Judge Advocate General approved the
applicant’s request for an extension for a period of 1 year.  The applicant
was serving in Iraq as a command staff judge advocate at the time and there
was not an officer immediately available to replace him.

6.  On 1 February 2005, the applicant was transferred to the Retired
Reserve due to maximum authorized years of service.  He had over 32 years
of commissioned service at the time.

7.  Army Regulation 140-10 (Assignments, Attachments, Details and
Transfers) states, in pertinent part, that colonels will be removed from an
active status once they complete 30 years of commissioned service if they
were under age 25 at initial appointment.

8.  Title 10, United states Code, Section 14507, states that a Reserve
officer of the Army who holds the rank of colonel and who is not on a list
of officers recommended for promotion to the next higher grade, shall be
removed from the Reserve Active Status List (RASL) on the first day of the
month following the month the officer completes 30 years of commissioned
service.

9.  Army Regulation 140-185 (Training and Retirement Points Credit and Unit
Level Strength Accounting Records) states, in pertinent part, that the
retirement year, once established, will not change as long as the Soldier
has continuous service in an active status in a Reserve and or a Regular
component.  It will change when there is a break in active status.

10.  Title 10, United States Code, section 14706, Computation of Years of
Service, subsection (a), specifies that a Reserve officer’s years of
service include all service of the officer as a commissioned officer other
than (1) service as a warrant officer, (2) constructive service credit, (3)
service after appointment as a commissioned officer of a Reserve component
while in a program of advanced education to obtain first a professional
degree required for appointment, designation, or assignment to a
professional specialty, but only if the service occurs before the officer
commences initial service on active duty or participated as a member of the
Ready Reserve in the specialty that resulted from such a degree.  The
exclusion under subsection (a)(3) does not apply to service performed by an
officer who previously served on active duty or participated as a member of
the Ready Reserve in other than a student status for the period of service
preceding the members service in a student status.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that TJAG misinterpreted the statute
regarding the exemption of law school attendance from the computation of
MRD has been noted; and found to be without merit.  The applicant was
serving in the USNR at the time he was attending law school and was not in
an Education Delay Program, accordingly, he was not entitled to have that
period exempted from his MRD computation.

2.  While the applicant may not agree with the interpretation of TJAG
regarding that statute, TJAG is in the best position to interpret the
statutes that apply to its officers and in this case, it would have been to
TJAG’s advantage to agree with the applicant’s position because the
applicant’s services were much needed at the time.  However, TJAG remained
within the constraints of the law in its interpretation of the statute.

3.  Notwithstanding that the applicant was able to serve over his 30 years
of service and beyond his MRD, it was done at a time in which the needs of
the service and the country were of paramount importance and the
applicant’s service to his country in its time of need is appreciated.

4.  However, the Board agrees with the JAG interpretation of the applicable
laws and regulations in this case and finds that there is no basis to grant
him additional service.

5.  In order to justify correction of a military record the applicant must
show or it must otherwise satisfactorily appear, that the record is in
error or unjust.  The applicant has failed to submit evidence that would
satisfy this requirement.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___RD __  ___DC __  ___RN __  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.





                                  _____Richard Dunbar_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050016237                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060817                                |
|TYPE OF DISCHARGE       |(HD)                                    |
|DATE OF DISCHARGE       |19910503                                |
|DISCHARGE AUTHORITY     |AR 135-180                              |
|DISCHARGE REASON        |RETIREMENT                              |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |                                        |
|1.113.0100/234/res svc  |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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