IN THE CASE OF:	  

		BOARD DATE:	  18 March 2010

		DOCKET NUMBER:  AR20090007974 


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) for captain be adjusted to 1 October 2001.

2.  The applicant states, in effect, that he entered the U.S. Navy in November 1999 and was promoted to lieutenant/O-3 on 1 October 2001.  He contends that he left the Navy on 31 January 2005 and joined the U.S. Army Reserve (USAR) on 1 February 2005.  He goes on to state that he had 3 years and 10 months of active commissioned service in the Navy when he was commissioned in the USAR and he should have been credited with 3 years of constructive credit.  He claims he was told he was years away from being able to come in as a captain and it was only 2 months.  He points out that he was already an O-3, that he was already on active duty in the Judge Advocate General Corps (JAG), and that he should have been brought in as a captain.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 31 March 2007; memoranda, dated 12 January 2005 and 9 December 2004; special orders, dated 24 January 2008; promotion orders, dated 2 August 2006; a DA Form 1506 (Statement of Service - For Computation of Length of service for Pay Purposes); oaths of office; a DA From 1059 (Service School Academic Evaluation Report); a U.S. Navy DD Form 214 for the period ending 31 January 2005; orders for the Meritorious Service Medal; and his Air Force application for correction of military records in support of his application.  


CONSIDERATION OF EVIDENCE:

1.  Having prior inactive service in the U.S. Navy Reserve, the applicant entered active duty in the U.S. Navy on 26 March 2001.  He served as a JAGC officer.  He was promoted to lieutenant/O-3 on 1 October 2001.  On 31 January 2005, the applicant was released from active duty after completing 3 years, 
10 months, and 5 days of creditable active service. 

2.  On 1 February 2005, the applicant was appointed a first lieutenant in the USAR in the JAGC with 3 years, 7 months, and 4 days time in grade.  He was awarded no constructive credit. 

3.  The applicant was promoted to captain effective 22 May 2006.

4.  In the processing of this case, a staff advisory opinion was obtained from the Chief, Reserve Component Judge Advocate Recruiting Office, in Rosslyn, Virginia.  This office recommends that the applicant's appointment orders for the U.S. Army JAGC be modified to reflect an appointment grade of captain with 
1 month, and 23 days time in grade.

5.  The advisory opinion states that under the provisions of Army Regulation 
135-100, paragraph 3-12, an officer shall receive 3 years constructive credit for his professional law degree.  Under the provisions of Department of Defense Instruction (DODI) 1312.03, paragraph 6.1.1.3., and Army Regulation 135-100, paragraph 3-12a(3), an officer will receive 1 year of prior commissioned service credit for each year of commissioned service in an active status, except for time spent in an active status while in law school.  Active service includes time spent in the Individual Ready Reserve (IRR).  An officer's grade at the time of appointment is computed by adding prior commissioned service and constructive service credit.

6.  The advisory opinion states that the applicant completed law school on 
8 December 2000, this entitles him to 3 years of constructive credit.  His prior commissioned service should be computed from the date he completed law school until the date he was discharged from the Navy (31 January 2005) because he was either in the IRR or on active duty during this entire period.  His prior commissioned service for this period equals 4 years, 1 month, and 23 days.  Thus, he is entitled to a total of 7 years, 1 month, and 23 days of commissioned service credit.  In view of the information presented, the applicant should have been appointed in the U.S. Army JAGC as a captain with his DOR back dated by 1 month and 23 days from the date of appointment. 

7.  A copy of the advisory opinion was forwarded to the applicant for comment and possible rebuttal.  The applicant did not respond within the given time frame.

8.  Table 3-3 (Appointment Grades) of Army Regulation 135-100 (Appointment of Commissioned and Warrant Officers of the Army) states, in pertinent part, that the appointment grade of an individual with commissioned service credit of 
7 years or more, but less than 14 years is captain.

9.  Table 3-4 (Constructive Service Credit) of Army Regulation 135-100 states, in pertinent part, that an officer will be credited with 3 years constructive service credit for his professional law degree.

10.  Table 3-5 (Prior Commissioned Service Credit) of Army Regulation 135-100 states, in pertinent part, that an officer will be credited with 1 year of prior commissioned service credit for each year of commissioned service in an active status, while serving in any component of the military services, but not on extended active duty.

11.  Paragraph 6.1.1.3. of DODI 1312.03 states that credit for prior service as a commissioned officer may not exceed 1 year for each year of commissioned service (except as a commissioned warrant officer) in an active status, but not on active duty, for persons appointed as Reserve commissioned officers.

DISCUSSION AND CONCLUSIONS:

1.  When the applicant was appointed a first lieutenant in the USAR in the JAGC on 1 February 2005 he was awarded only 3 years, 7 months, and 4 days for his prior commissioned service in the U.S. Navy and no constructive service credit.

2.  The advisory opinion points out that upon review of the applicant's records, it was determined that he should have been credited with 3 years of constructive credit for completing law school and credited with 4 years, 1 month, and 23 days for his prior commissioned service, a total of 7 years, 1 month, and 23 days of commissioned service credit.

3.  Based on the foregoing and the advisory opinion recommendation, it would be appropriate to adjust his constructive credit to 7 years, 1 month, and 23 days; correct his appointment orders for the JAGC to show an appointment grade of captain with 1 month and 23 days time in grade; and adjust his DOR for captain to 9 December 2004.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x____  ____x____  ____x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  adjusting his constructive service credit to 7 years, 1 month, and 23 days;

	b.  showing he was appointed in the USAR in the JAGC as a captain on 
1 February 2005 with 1 month and 23 days time in grade;

	c.  adjusting his active service DOR for captain to 9 December 2004; and

2.  The Defense Finance and Accounting Service should pay him any and all back pay and allowances due as a result of the above corrections.

3.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to adjusting his DOR for captain to 1 October 2001.




      _______ _   _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)                                         AR20090007974



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ABCMR Record of Proceedings (cont)                                         AR20090007974



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