RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  19 June 2007
	DOCKET NUMBER:  AR20060016038 


	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.


Ms. Catherine C. Mitrano

Director

Ms. Wanda L. Waller

Analyst


The following members, a quorum, were present:


Ms. Barbara Ellis

Chairperson

Mr. Frank Jones

Member

Mr. Qawiy Sabree

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 date of rank (DOR) to major be adjusted to 
14 March 2000 instead of 13 June 2003.

2.  The applicant states, in effect, that his DOR to major in the Engineer Branch of the Army National Guard (ARNG) was 14 March 2000.  However, when he transferred to the Judge Advocate General’s Corps (JAGC) of the ARNG on 
13 June 2003 his DOR to major was changed to the date of his appointment.  He further states that his DOR to major was corrected to 14 March 2000 by the National Guard Bureau on 11 April 2006; however, on 14 April 2006 his DOR to major was changed back to 13 June 2003.

3.  The applicant provides 12 enclosures outlined in the Table of Contents.

CONSIDERATION OF EVIDENCE:

1.  The applicant has served in Operation Enduring Freedom.

2.  Having prior inactive and active service, the applicant was appointed a second lieutenant in the Engineer Branch of the ARNG on 26 July 1987.  He was promoted to first lieutenant in the Engineer Branch of the ARNG on 25 July 1990; promoted to captain in the Engineer Branch of the ARNG on 1 October 1992; and promoted to major in the Engineer Branch of the ARNG on 14 March 2000. 

3.  Departments of the Army and the Air Force, National Guard Bureau, Special Orders Number 218 AR, dated 26 August 2003, show the applicant was granted Federal Recognition as a major due to initial appointment in the Judge Advocate General’s Corps of the ARNG effective 13 June 2003.

4.  On 5 April 2006, a request to change the applicant’s DOR to 14 March 2000 was submitted by the State Judge Advocate, South Dakota Army National Guard to the National Guard Bureau.  The State Judge Advocate points out that the statutory authority of section 12206 of Title 10, U.S. Code was not recognized when the applicant’s DOR was adjusted to 13 June 2003.  He states that under regulations prescribed by the Secretary of Defense, a person who is a former commissioned officer may, if otherwise qualified, be appointed as a reserve officer of the Army, Navy, Air Force, or Marine Corps.  A person so appointed may be credited for the purpose of determining DOR under section 741(d) of Title 10, U.S. Code with service in grade equal to that held by that person when discharged or separated.  He further states that the applicant’s original appointment to major correctly credited him with his prior commissioned service 

and that his DOR for major should be the DOR determined upon his original appointment to that rank, not the date of his appointment as a Judge Advocate.    
5.  Departments of the Army and the Air Force, National Guard Bureau, Special Orders Number 94 AR, dated 11 April 2006, amended Departments of the Army and the Air Force, National Guard Bureau, Special Orders Number 218 AR, dated 26 August 2003, to show the applicant’s DOR as major was 14 March 2000.

6.  Departments of the Army and the Air Force, National Guard Bureau, Special Orders Number 97 AR, dated 14 April 2006, amended Departments of the Army and the Air Force, National Guard Bureau, Special Orders Number 94 AR, dated 11 April 2006, to show the applicant’s DOR as major was 13 June 2003.

7.  Paragraph 3-12 of Army Regulation 135-100 (Appointment of Commissioned and Warrant Officer of the Army), dated 1 September 1994, states, in pertinent part, that the DOR of an officer commissioned in the Reserve of the Army and assigned to the JAGC is the date of appointment.  The DOR will further be backdated by the period of commissioned service credit awarded, 1 year for each year of commissioned service in an active status. 

8.  Paragraph 4.2.3. of Department of Defense Directive (DODD) Number 1312.3 (Service Credit for Commissioned Officers), dated 21 October 1996, states that the total entry grade credit granted, except for a health professional officer, shall be no more than that required for the person to receive an entry grade of major or lieutenant commander.  This limitation may be waived by the Secretary of the Military Department concerned in individual cases if there are significant reasons to appoint a person in a higher grade.  

9.  Title 10, U.S. Code, section 12206, provides for appointment of former commissioned officers.  It states, in pertinent part, that under regulations prescribed by the Secretary of Defense, a person who is a former commissioned officer may, if otherwise qualified, be appointed as a reserve officer of the Army, Navy, Air Force, or Marine Corps.  A person so appointed may be credited for the purpose of determining DOR under section 741(d) of this title with service in grade equal to that held by that person when discharged or separated.

10.  Title 10, U.S. Code, section 12207(a)(1), provides for service credit upon original appointment for commissioned officers.  It states, in pertinent part, that for the purpose of determining the grade and the rank within grade of a person receiving an original appointment as a reserve commissioned officer (other than a commissioned warrant officer) in the Army, Navy, Air Force, or Marine Corps, the person shall be credited at the time of the appointment with any commissioned service (other than service as a commissioned warrant officer) performed before such appointment as a regular officer, or as a reserve officer in an active status, in any armed force, the National Oceanic and Atmospheric Administration, or the Public Health Service.

11.  Title 10, U.S. Code, section 12207(a)(2) states that the Secretary of Defense shall prescribe regulations, which shall apply uniformly among the Army, Navy, Air Force, and Marine Corps, to authorize the Secretary of the military department concerned to limit the amount of prior commissioned service with which a person receiving an original appointment may be credited under paragraph 12207(a)(1), or to deny any such credit in the case of a person who at the time of such appointment is credited with constructive credit under subsection 12207(b). 

12.  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, Navy, Air Force, or Marine Corps in grades below lieutenant commander or major is critically below the number needed by that armed force in those grades, the Secretary of Defense may authorize the Secretary of the military department concerned to credit any person who is receiving an original appointment with a view to assignment to the Judge Advocate General’s Corps of the Army or appointment to the Judge Advocate General’s Corps of the Navy, or who is receiving an original appointment in the Air Force or Marine Corps with a view to designation as a judge advocate, with a period of constructive service in such an amount (in addition to any amount credited with such person under subsection 12207(b) as will result in the grade of such person being that of captain or, in the case of the Navy, lieutenant, and the date of rank of such person being junior to that of all other officers of the same grade serving on the active-duty list.     

13.  Army Regulation 600-20 (Army Command Policy) defines “original appointment” as any appointment in a Reserve or regular component of the Armed Forces that is neither a promotion nor a demotion.  Officers may receive more than one “original appointment.”

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows the applicant was promoted to major in the Engineer Branch of the ARNG with a DOR of 14 March 2000.  

2.  Evidence of record also shows that the applicant was appointed in the highest grade entitled, a major, in the JAGC of the ARNG with a DOR of 13 June 2003.  This appointment was also an “original” appointment, as defined in Army Regulation 600-20.   

3.  The contention of the State Judge Advocate, South Dakota ARNG, that the applicant’s original 14 March 2000 appointment to major correctly credited him with his prior commissioned service and that his DOR for major should be the DOR determined upon his first appointment to that rank, not the date of his appointment as a Judge Advocate, was noted.  However, it appears he misunderstood the term “original appointment.”  Again, the applicant’s appointment in the JAGC was also an original appointment.  

4.  In addition, the State Judge Advocate contended that Title 10, section 12206 was not recognized when the applicant’s DOR was adjusted to 13 June 2003.  However, section 12206 clearly gives the Secretary of Defense the authority to appoint former commissioned officers as Reserve officers.  Section 12206 clearly states a person so appointed may be credited for the purpose of determining DOR under section 741(d) of this title with service in grade equal to that held by that person when discharged or separated.  The Secretary of Defense has provided guidance in DODD 1312.3 that this limitation may be waived by the Secretary of the Military Department concerned in individual cases if there are significant reasons to appoint a person in a higher grade.  This also appears to be in conformance with Title 10, section 12207(d), which authorizes constructive credit specifically to JAGC officers below the grade of major (but not to major or above).             

5.  Army Regulation 135-100 stated that the DOR of an officer commissioned in the Reserve of the Army and assigned to the JAGC is the date of appointment and that the DOR will further be backdated by the period of commissioned service credit awarded, 1 year for each year of commissioned service in an active status.  However, that regulation was dated 1994.  DODD 1312.3, dated 
21 October 1996, supersedes any guidance in Army Regulation 135-100.  Paragraph 4.2.3. of DODD 1312.3 states that the total entry grade credit granted, except for a health professional officer, shall be no more than that required for the person to receive an entry grade of major or lieutenant commander.  This limitation may be waived by the Secretary of the Military Department concerned in individual cases if there are significant reasons to appoint a person in a higher grade.  There appears to be no contradiction between the governing regulation authority (DODD 1312.3) and the governing statutory authority.  

6.  Based on the foregoing, the applicant’s DOR of 13 June 2003 is correct.  Therefore, there is no basis for granting the applicant’s request.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

BE_____  __FJ____  __QS___  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.



__Barbara Ellis_______
          CHAIRPERSON




INDEX

CASE ID
AR20060016038
SUFFIX

RECON

DATE BOARDED
20070619
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY
  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
131.0500
2.

3.

4.

5.

6.