IN THE CASE OF:	  

		BOARD DATE:	        13 January 2009

		DOCKET NUMBER:  AR20080019029 


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 correction of his date of rank (DOR) as a major (MAJ) from 22 December 2005 to 24 July 2003.

2.  The applicant states that on 24 July 2003, he executed an oath of office by which he lawfully accepted the appointment tendered by the Army and resulted in a DOR of 24 July 2003.  He further states that there are three reasons why his petition should be granted and his DOR should be changed and submitted the following argument:

	a.  As a matter of contract law, he and the Army are bound by the term of the appointment and oath that he executed in 2003.  On 4 June 2003, the Army informed him that he was appointed in the USAR and that his DOR is the date of appointment.  Accordingly, he executed an oath on 24 July 2003.  There is no evidence that the Army has formally withdrawn the oath.  These facts clearly establish a binding contract between him and the Army.

	b.  On 23 October 2003, after the Army informed him that there was a problem with his status, he specifically requested his appointment not be withdrawn so he could pursue a waiver from the Secretary of the Army.  Under the law, the Secretary of the Army waiver ratified the oath that he had executed in 2003.  The doctrine of ratification is a well-recognized principle of law.  Changing his DOR will not violate the statute, but instead would accurately reflect the fact that he was offered and did execute an oath on 24 July 2003.  Even if that oath is flawed, the waiver by the Secretary of the Army eliminated such flaw. 

	c.  The change in DOR is needed to allow him to be considered for promotion sufficiently early to serve in the promotion grade before his mandatory retirement date.  He adds that he has worked diligently to ensure promotion eligibility by completing his officer advanced course and almost half of the ILE (intermediate level education), Phase 2. 

	d.  The Army will be the ultimate beneficiary by acting favorably on this request.  Changing his DOR would allow him to serve the Army in a position of more substantial responsibility for a longer period of time.  His unique background, including service on the Department of the Army (DA) staff and as an infantry officer, is the type of experience that can be utilized in today’s environment.

3.  The applicant provides a copy of an appointment memorandum, issued by the Judge Advocate Recruiting Office, Rosslyn, VA, on 4 June 2003; a copy of a DA Form 71 (Oath of Office), dated 24 July 2003; a copy of an email exchange, dated 20 and 24 March 2008, between the applicant and the Office of The Judge Advocate General (TJAG) Personnel, Plans, and Training Office (PP&TO); and a copy of a General Officer letter of recommendation, dated 14 April 2004, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show he graduated from the U.S. Military Academy at West Point, New York, and was appointed as a second lieutenant in the U.S. Army Reserve (USAR) on 6 June 1979.  He subsequently entered active duty, completed the Infantry Officer Basic Course, served in various command and staff positions, and was promoted to first lieutenant on 21 February 1981 and to captain on 1 June 1983.

2.  In September 1985, the applicant completed the Judge Advocate Officer Basic Course and was re-branched into the Judge Advocate General Corps (JAGC).  He was subsequently promoted to MAJ on 1 February 1991.  

3.  The applicant’s records also show that on 14 June 1993 he tendered his unqualified resignation to pursue employment outside the Army.  Accordingly, he was honorably discharged on 12 October 1993.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he completed     14 years, 4 months, and 7 days of creditable active Federal service.



4.  On 12 October 1993, the applicant was appointed as a USAR commissioned officer in the rank of MAJ and executed an oath of office on the same date.  He was assigned to the USAR Control Group (Reinforcement).  His records also show that he was twice non-selected for promotion in 1997 and 1998 for not meeting educational qualification requirements and was accordingly honorably discharged from the USAR on 9 August 1999.

5.  On 10 April 2002, by email to the U.S. Total Army Personnel Command (now known as the Human Resources Command), St. Louis, Missouri (MO), the applicant inquired about reactivating his USAR status and requested information about Individual Mobilization Augmentee (IMA) positions. 

6.  On 29 May 2002, the applicant submitted a DA Form 61 (Application for Appointment) requesting to be appointed as a MAJ in the JAGC of the USAR. 

7.  On 4 June 2003, by letter, the Chief, Reserve Recruitment, Judge Advocate Recruiting Team, Rosslyn, VA, congratulated the applicant for approval of his application for appointment.  The Chief further informed him that the Appointment Branch, HRC-St. Louis will prepare his appointment memorandum and oath of office paperwork. 

8.  On 4 June 2003, by memorandum, the Acting Chief, Reserve Recruitment, Judge Advocate Recruiting Team, Rosslyn, VA, informed the applicant that his application for appointment in the rank of MAJ, JAGC, USAR, without concurrent active duty, in specialty 55A (Judge Advocate General), was approved with assignment to the IMA Program and that his date of rank was his date of appointment. 

9.  On 24 July 2003, the applicant executed an oath of office.  A copy of this oath is provided by the applicant.  

10.  The applicant's official record is void of the oath of office the applicant executed on 24 July 2003 and/or any subsequent appointment memorandum by HRC-St. Louis.

11.  On 14 April 2004, by memorandum addressed to the Secretary of the Army, the Commander of the TJAG Legal Center and School, requested favorable consideration of the applicant’s request for a waiver of disqualification for appointment in the USAR and strongly recommended approval of the waiver.  He further added that he has known the applicant for over 15 years and was aware of the circumstances that led to his non-selection for promotion and ultimate release from Reserve status.  

12.  On 4 August 2005, by memorandum, the Chief, Reserve Component Judge Advocate General, Judge Advocate Recruiting Team, Rosslyn, VA, informed the applicant that appointment in the rank of MAJ, JAGC, USAR, without concurrent active duty, in specialty 27A (JAG Corps Attorney), was approved with assignment to the IMA Program and that his date of rank was his date of appointment. 

13. On 29 September 2005, by memorandum, HRC-St. Louis, MO, notified the applicant that he was appointed as a MAJ in the JAGC of the USAR for an indefinite term.  The applicant subsequently executed an oath of office on 22 December 2005. 

14.  On 24 March 2006, HRC-St. Louis, MO, published Orders C-03-608032, appointing the applicant to the USAR, effective 22 December 2005, and assigned him to the USAR Control Group (Annual Training)

15.  On 1 November 2006, the applicant was further assigned to the 12th JAG Detachment, Fort Jackson, South Carolina.

16.  On 20 March 2008, by email, the applicant requested TJAG adjust his DOR from 22 December 2005 to 24 July 2003.  He subsequently received an email response from the Chief, Reserve Components, TJAG PP&TO, who stated that he was not eligible for appointment until after the Secretary of the Army approved his waiver request in 2005.  The Chief added that the oath of office executed by the applicant in 2003 and subsequent appointment was invalid.  His new oath of office and appointment, dated 22 December 2005, is the correct date of appointment.

17.  Army Regulation (AR) 135-100 (Army National Guard and Army Reserve-Appointment of Commissioned and Warrant Officers of the Army) prescribes policy and procedures for the appointment of commissioned and warrant officers in the Army National Guard of the United States (ARNGUS) and the United States Army Reserve (USAR).  It provides, in pertinent part:

	a.  Commissioned officers twice passed over for promotion or otherwise released from AD or active status are not eligible for appointment, except that RA officers discharged with less than 20 years active Federal service may apply for a Reserve commission.  A waiver must be approved and will be granted only by the Secretary of the Army.

	b.  Special requirements for appointment of personnel in the JAGC.  Only qualified applicants will be appointed in the JAGC.  The date of rank 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.  This is in excess of that amount used to establish the officer’s appointment grade.

18.  The general eligibility requirements of for JAG applicants are also supplemented by meeting the eligibility requirements of AR 27-1 (Judge Advocate Legal Services) and having successfully completed the minimum military education requirements of AR 27–1 for JAGC officers.  This education is for appointment in the grade for which the applicant is otherwise eligible, except if the applicant is otherwise qualified, TJAG has the discretion to authorize the applicant’s appointment in the JAGC, with the condition field grade officers complete The Judge Advocate Officer Advanced Correspondence Course within 30 months of the date of appointment.  Reserve officers under conditional appointments must not fail to satisfy the educational requirements of the Basic or Advanced Course.  These military education prerequisites are waived if the applicant requests appointment and concurrent voluntary active duty with the JAGC.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DOR should be changed from 22 December 2005 to 24 July 2003.

2.  The evidence of record shows that the applicant was twice non-selected for promotion in 1997 and 1998, while in the USAR, for failing to complete his education requirements.  It appears that upon application for appointment to the USAR in 2002, TJAG personnel may have not been aware of this fact.  He was issued a memorandum on 4 June 2003 stating that his application for appointment was approved and that his date of rank would be the date of appointment.  However, although he executed an oath of office on 24 July 2003, he was never issued an appointment memorandum.  Therefore, there was never a contractual agreement between the applicant and the Army on 24 July 2003. 

3.  The applicant was notified of the requirement to submit a waiver for his appointment and accordingly requested a waiver in 2004 and solicited a recommendation from the Commander of the TJAG Legal Center and School, on 14 April 2004.  It appears that the Secretary of the Army approved his waiver sometime in 2005.  


4.  The applicant could not have been appointed prior to the date of waiver approval by the Secretary of the Army.  By regulation, the applicant must be otherwise qualified on the date of appointment.  The purpose of the waiver is to bring the applicant up to standards.  The applicant’s argument that he specifically requested his appointment not be withdrawn so he could pursue a waiver from the Secretary of the Army has no bearing on the fact that on 23 July 2003, he was not qualified for appointment. 

5.  The applicant’s pursuit of promotion competitiveness and/or completion of his military education appear to be noble.  However, the Army Board for Correction of Military Records (ABCMR) does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  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.  Therefore, he is not entitled to relief.

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.



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      _______ _   _______   ___
               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)                                         AR20080019029



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ABCMR Record of Proceedings (cont)                                         AR20080019029



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