IN THE CASE OF:	  

	BOARD DATE:		 

	DOCKET NUMBER:  AR20080000295 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, a change to his mandatory removal date (MRD).

2.  The applicant states, in effect, that he believes his MRD has been incorrectly computed which will prevent him from serving thirty (30) years.  He believes his request is in the best interests of the US Army based on its investment in his training and his experiences as a Colonel in the Judge Advocate General Corps.

3.  In support of his request, the applicant submitted a narrative addendum to his DD Form 149, Application for Correction of Military Record, outlining the events leading up to his entry on active duty and his understanding and interpretation of Title 10, US Code Section 14706(a)(3) which he believes supports his request; and a copy of Title 10, US Code Section 14706.

CONSIDERATION OF EVIDENCE:

1.  The evidence shows the applicant was appointed a Reserve commissioned officer in the Army of the United States, in the rank of Second Lieutenant, on 26 May 1975.  He was appointed when he was 22 years, 2 months, and 6 days of age.

2.  On 10 September 1975, the applicant applied for an initial education delay from entry on active duty.  His application for initial delay was approved to commence in August 1975 and to terminate in August 1976.

3.  On 30 January 1976, the applicant applied for renewal of his educational delay from entry on active duty.  He requested the delay to commence in September 1975 and to terminate in September 1976.

4.  On 6 May 1976, the applicant was advised in a letter from the Office of the Adjutant General, Reserve Components Personnel and Administration Center, St. Louis, Missouri, that his application for renewal of an educational delay was approved to June 1977.

5.  On 26 January 1977, the applicant again applied for renewal of an educational delay from entry on active duty.  His application for renewal of his educational delay was approved to May 1978.

6.  On 3 May 1979, the Office of the Adjutant General, Reserve Components Personnel and Administration Center, published AGUZ-RCA-DO Orders A-05-45538 ordering the applicant to active duty, in the JAG Corps, in the rank of First Lieutenant, with an effective date of 1 June 1979.

7.  The applicant was honorably released from active duty, in the rank of Captain, on 29 May 1983.  He was transferred to a TPU of the Reserve.

8.  The evidence shows the applicant continued to serve as a member of the Reserve.  He was promoted to the rank and pay grade Colonel, O-6, with a date of rank and effective date of 19 November 2002.

9.  The Human Resources Command Integrated Web Service, Total Army Personnel Data Base (TAPDB) shows the applicant's MRD to be 1 June 2008.

10.  On 17 March 2008, the Army Human Resources Command, St. Louis, Missouri, published AHRC-DDSP4-01-0802 Orders C-03-804935, reassigning the applicant from a TPU to the Retired Reserve, with an effective date of 1 June 2008.

11.  In the processing of this case, an advisory opinion was requested of the US Army Human Resources Command, Human Resources Specialist, Transition and Separations Branch.

12.  In the advisory opinion that was provided by the Human Resources Specialist, Transition and Separations Branch, the applicant's early service, after he received his commission as a Reserve officer, was described chronologically. The applicant received approval for an initial educational delay and renewal of 

education delays for the period beginning in August 1975 and ending in May 1978.  The Human Resources Specialist, Transition and Separations Branch, opined that in accordance with applicable law [Title 10, Sections 14507 and 14706], further adjustment to the applicant's MRD was not possible.

13.  The advisory opinion was furnished to the applicant, on 25 March 2008, for his information and possible rebuttal prior to the consideration of his case by the Board.  The applicant did not respond.

14.  Title 10, USC, Section 14706, Computation of Total Years of Service, is quoted in part as follows: "(a), For the purpose of this title, a Reserve officer's years of service include all service of the officer as a commissioned officer of a uniformed service other than the following:  (1) service as a warrant officer, (2) constructive service and (3) service after appointment as a commissioned officer of a Reserve component while in a program of advanced education to obtain the first professional degree required for appointment, designation, or assignment to a professional specialty (emphasis added), but only if that service occurs before the officer commences initial service on active duty or initial service in the Ready Reserve in the specialty that results from such a degree."

15.  Title 10, USC, Section 14507, Removal from the Reserve Active-Status List for Years of Service, is quoted in part as follows:  "(b) Colonels and Navy Captains. – Unless continued on the Reserve active status list under Section 14701 or 14702 of this title or retained as provided in Section 12646 or 12686 of this title, each Reserve officer of the Army, Air Force, or Marine Corps who holds the grade of colonel, and each Reserve officer of the Navy who holds the grade of captain, and who is not on a list of officers recommended for promotion to the next higher grade shall (if not earlier removed from the Reserve active status list) be removed from that list under section 14514 of this title on the first day of the month after the month in which the officer completes 30 years of commissioned service.  This subsection does not apply to the Adjutant General or Assistant Adjutant General of a State.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was appointed a commissioned officer in the Reserve on 26 May 1975.  Through a succession of educational delays, the applicant postponed his entry onto active duty in order to attend law school.  His last educational delay expired in May 1978 when the applicant graduated from law school.  The applicant, after passing the bar examination, and other entry requirements, entered active duty as a judge advocate on 1 June 1979

2.  The applicant believes the 30-year service limit set forth in 10 USC 14706(a)(3) should not have started until he actually entered active duty and not when he graduated from law school.  An advisory opinion obtained from the Army Human Resources Command disagrees with the applicant's assertion.

3.  In view of the evidence in this case, the applicant is not entitled to an adjustment of his MRD to the requested date of 1 June 2009.  A plain reading of 10 USC 14706 makes it clear that the service applicable for the establishment of an MRD was tolled only while he was enrolled in law school.  Once the applicant graduated, time began to accrue against his MRD.

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, 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.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x___  ____x___  ___x____  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.




      __________x_____________
      	CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.


ABCMR Record of Proceedings (cont)                                         AR20080000295





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ABCMR Record of Proceedings (cont)                                         AR20080000295



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