RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 19 April 2007
DOCKET NUMBER: AR20060011062
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.
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 records be corrected to reverse the denial of his request for an exception to policy to execute a Judge Advocate Continuation Pay (JACP) contract.
2. The applicant states that he served 4 ½ years of active duty in the Judge Advocate General Corps (JAGC) and was eligible for the JACP at that time. However, he opted to be released from active duty for financial reasons.
3. Two months and 10 days later, he voluntarily reentered active duty. He took this action due to the attacks against the United States on September 11 and has remained on active duty since that time.
4. In late 2002, he was diagnosed with two forms of cancer, which precluded him from being reassessed on regular active duty. Since then his cancers have both gone into remission and he has been reassessed on regular active duty.
5. The applicant contends that if it had not been for his cancers, he would have been successful into being reassessed on regular active duty and would have been eligible for the JACP.
6. The applicant provides his request for an exception to policy regarding JAGC dated 27 December 2005; the denial of that request by the Principal Deputy Assistant Secretary (Manpower and Reserve Affairs); and the transcript from a message from the Personnel, Plans, and Training Office, Office of The Judge Advocate General.
CONSIDERATION OF EVIDENCE:
1. The applicants records show that he was commissioned as a JAGC officer and entered active duty on 20 January 1997. He was honorably released from active duty as a captain on 24 July 2001 for miscellaneous/general reasons.
2. The applicant was ordered to active duty pursuant to the Presidential Partial Mobilization order on 3 October 2001. He served continuously as a Reservist on active duty under several active duty orders. He was promoted to major on 26 August 2004. He was honorably released from active duty in the rank of major on 26 July 2006 by reason of completion of required active service.
3. The applicant reentered active duty on 11 August 2006. These orders specified that he was being ordered to 10 months of active duty, but those orders were amended to read 3 years of active duty. The authority cited on these orders was Title 10 US Code, Section 12301.
4. The applicant requested an exception to policy to execute a JAGC contract on 27 December 2005. In an undated memorandum the Principal Deputy Assistant Secretary (Manpower and Reserve Affairs) denied the applicants request. That denial was forwarded to the applicant by the Chief, Personnel, Plans, and Training Office, Office of The Judge Advocate General. In the forwarding correspondence it was stated that the applicants request fell outside the scope of the JAGC program.
5. The transcript from a message from the Personnel, Plans, and Training Office, Office of The Judge Advocate General, contains the implementation instructions for the legislative authority in 37 USC 321, as promulgated by the Assistant Secretary of Defense (Force Management Policy).
6. In those instructions, it specified that effective 1 October 2005, the following judge advocates were eligible for the new JACP: Probationary Regular Army (RA) captains upon completion of their initial active duty service obligation; nonprobationary RA captains during their sixth year of active commissioned service; and RA officers upon completion of 10 years of service on the active duty list (ADL) as a judge advocate. This message adds that judge advocates on the ADL, who were then pending transition to the RA, were treated as RA officers for the purpose of this policy.
7. This message also contains a list of categories which are not eligible for JACP. One of those is officers who were selected for voluntary indefinite status but declined the opportunity to apply for JACP.
DISCUSSION AND CONCLUSIONS:
1. The applicant, by his own admission, was eligible for JACP when he was released from active duty on 24 July 2001. Since he declined JACP at that time, he was specifically prohibited from receiving JACP under the new incentive.
2. The JACP requested by the applicant is an incentive for, primarily, RA captains. However, it does contain provisions to provide this incentive to Other Than RA (OTRA) JAGC officers who are on the ADL who were transitioning to the RA. The applicant was not an RA captain and was not on the ADL pending transition to the RA. As such, he was not entitled to the JACP.
3. While it is unfortunate that the applicants decision to separate from active duty on 24 July 2001 precluded him from receiving the new JACP, that fact does not constitute an injustice that would warrant an exception to policy.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
___jgh___ ____jns__ ____dkh_ 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.
_________John N. Slone_________
CHAIRPERSON
INDEX
CASE ID
AR20060011062
SUFFIX
RECON
YYYYMMDD
DATE BOARDED
20070419
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .
DISCHARGE REASON
BOARD DECISION
DENY
REVIEW AUTHORITY
ISSUES 1.
2.
3.
4.
5.
6.
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