IN THE CASE OF:	  

		BOARD DATE:	        25 August 2009

		DOCKET NUMBER:  AR20080016938 


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 that his date of rank (DOR) as a captain be backdated from 14 February 2005 to 12 September 2003.  

2.  The applicant states that he has as much time on active duty as his Regular Army (RA), Judge Advocate General's Corps (JAGC) classmates at the officer basic course (OBC).  Yet, the RA officers were given constructive service credit and appointed to captain.  He thinks that the provisions of Army Regulation
600-8-29 (Officer Promotions) and Army Regulation 135-100 (Army National Guard and Army Reserve - Appointment of Commissioned and Warrant Officers of the Army) must be read together.  He also suggests that Army Regulation
600-20 (Army Command Policy) adds "equal opportunity" provisions that require adjusting his date of rank.     

3.  The applicant provides, in support of his application, a memorandum of support, an extract from Army Regulation 600-8-29, an extract from  Army Regulation 135-100, a DA Form 1506 (Statement of Service - For Computation of Length of Service for Pay Purposes), and a 21 March 2005 promotion memorandum.

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed a USAR commissioned officer in the JAGC, on 
13 August 2002.  He was credited with 3 years of service in an active status and appointed a first lieutenant (1LT).

2.  He graduated from the JAGC Officer Basic Course (OBC) on 11 April 2003.  On 21 March 2005, he was promoted to captain with a DOR of 14 February 2005.																			    

3.  The applicant entered active duty on 21 October 2005.

4.  His ARPC Form 249-E (Chronological Statement of Retirement Points) shows that from 20 August 2002 through 19 August 2003 he was credited with 105 active duty points, from 20 August 2003 through 19 August 2004 he was credited with 235 active duty points, from 20 August 2004 through 19 August 2005 he was credited with 365 active duty points, and from 20 August 2005 through 19 August 2006 he was credited with 52 active duty points. 
  
5.  The Chief, Special Actions Branch, Department of the Army Promotions, Human Resources Command, St. Louis noted that the USAR "started accelerating captain promotions in calendar year 2005 to be more in line with the active duty counterparts and continues to do so."

6.  An advisory opinion from the Chief, Personnel, Plans and Training Office, Office of The Judge Advocate General recommends denial of the applicant's request based on the fact that he received the correct constructive credit,
3 years, for his law school education and appropriate adjustment of his DOR when he was accessed onto the Active Duty List on 21 October 2005. 

7.  In rebuttal to the advisory opinion, the applicant maintained that he had as much time on active duty as his classmates.  He modified his request to ask that his active duty date of rank (ADOR) be adjusted by the amount of time he has spent on active duty.     

8.  The extract of Army Regulation 600-8-29 that the applicant submitted with his application has paragraph 1-44c highlighted.  It reads:  "A 1LT who was originally appointed in that grade and who has 18 months or less service in an active status in that grade immediately prior to being placed on the ADL will be placed on the ADL in the grade of 1LT with an ADOR 18 months prior to the date of placement."

9.  The extract of Army Regulation 135-100 provided by the applicant consists, in part, of paragraph 3-12, Appointment in the Judge Advocate General's Corps, with the following sentence highlighted:  "(2)  The DOR of a JAGC Reserve officer ordered to AD and placed on the ADL may be adjusted under Army Regulation 600-20, chapter 6."

10.  Army Regulation 600-20, in effect at the time, set forth the Army's equal opportunity program in chapter 6, The Equal Opportunity Program in the Army.  These provisions were applicable to assignment, promotion, and management of personnel.  Except to preclude women from combat and allow for religious consideration for chaplains, the chapter provides no specific guidance other than to preclude use of race, color, religion, gender, or national origin.

11.  A memorandum of support was written by a Staff Judge Advocate (SJA) from Headquarters, 10th Support Group and U.S. Army Okinawa, where the applicant was stationed when he applied to this Board.  The SJA contends that since 2006, JAGC policy has been to appoint JA officers as 1LT's and to promote them to captain after 1 year.  He also relates that as late as 2004 most JA officers were Reservists, but those on active duty were promoted to captain in as little as 4 months, whereas those who stayed in a Reserve status were not.  He also contends that the applicant has as much active duty time as his classmates.  He argues that the applicant is at a disadvantage for assignment possibilities because his DOR indicates an apparent relative lack of experience.  He believes that the applicant's DOR should be corrected "to include all periods of active service."

DISCUSSION AND CONCLUSIONS:

1.  The applicant states that his DOR should be adjusted because he has as   much time on active duty as his RA classmates at the JAGC OBC.

2.  The applicant contends, in effect, that he is at a competitive disadvantage because his RA classmates at the JAGC OBC received constructive credit and he did not.

3.  The applicant was promoted to captain with a DOR of 14 February 2005.  He entered active duty on 21 October 2005. 

4.  The applicant maintains that he has almost as much active duty experience as his RA classmates.  However, they were on active duty the entire time from 
13 August 2002 through 20 October 2005 and he was not.  His ARPC Form 
249-E shows that during that time period he was on active duty for approximately 767 days.  His RA counterparts would have served for 1,460 days or almost twice as much. 
  
5.  Furthermore, his RA classmates not only performed about twice as much active duty service during that four year period, they were also totally subject to the demands and restrictions of military life while he was not.  Therefore, his experience is not the equal of their experience.
6.  Chapter 6 of Army Regulation 600-20 states that equal opportunity considerations apply to promotion and personnel management issues, but provides no guidance that is germane to this case.

7.  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.

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)                                         AR20080016938



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ABCMR Record of Proceedings (cont)                                         AR20080016938



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