IN THE CASE OF:	  

		BOARD DATE:	  31 August 2010

		DOCKET NUMBER:  AR20100001109 


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 her date of rank (DOR) as a first lieutenant (1LT) be changed from June 2008 back to 27 May 2007 and that she be promoted to the rank of captain (CPT).

2.  The applicant states that she was arbitrarily stripped of 1 year time in grade as a 1LT when she branch transferred from the Military Intelligence (MI) Branch to the Judge Advocate General Corps (JAGC) and was thus denied her promotion to the rank of CPT with the officers she was commissioned with.  She continues by stating that she was educationally qualified and promotable in all other respects at the time and contends that it is unjust to promote a Soldier 1 year behind her peers simply because of a branch transfer to better serve the Army.  She goes on to state that the current policy utilized by the JAGC states that those officers with 7 years or less of service will be appointed as a 1LT with 1 year time in grade.  She contends that this policy is beneficial for some but burdensome for others and offers an example of a second lieutenant (2LT) commissioned through the Reserve Officers' Training Corps (ROTC) and immediately joins the JAGC is promoted ahead of their peers to 1LT because they receive 1 year time in grade (TIG), so they are promoted to CPT early.  She also states that there is a special exception for National Guard Soldiers as they are not penalized for being brought into the JAGC.  Accordingly, a remedy should exist for Reservists as well so that they are not promoted late.



3.  The applicant provides:

* a copy of her orders reassigning her upon her appointment
* a copy of an email from The Office of The Judge Advocate General (OTJAG)
* a copy of a memorandum appointing her as a Judge Advocate General 1LT with 3 years of constructive credit
* a copy of orders promoting her to the rank of 1LT effective 27 May 2007 as a MI officer
* a copy of her Officer Evaluation Report (OER) ending 16 March 2009. 

CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned as a United States Army Reserve (USAR) 2LT in the MI branch on 6 May 2005.  She completed her MI officer basic course in 2006 and was promoted to the rank of 1LT on 27 May 2007. 

2.  On 5 June 2009, the applicant accepted appointment as a 1LT in the JAGC with 3 years of constructive credit and a DOR of 5 June 2008.  She was ordered to active duty for training on 5 July 2009 to attend the Judge Advocate General officer basic course and when she completed it she was honorably released from active duty training on 30 September 2009 and was returned to her USAR unit. 

3.  The email provided by the applicant with her application from OTJAG essentially informs the applicant that her transfer from the MI branch to the JAGC involved a new original appointment and not a branch transfer.  As such, her rank and DOR from her prior branch did not carry over to the JAGC.  Accordingly, she was appointed as a 1LT based on 4 years of prior commissioned service and was given 1 year time in grade.  Officials at OTJAG opined that she was not eligible for consideration to the rank of CPT based on her adjusted DOR in the JAGC.

4.  Army Regulation 135-100 (Appointment of Commissioned and Warrant Officers of the Army) provides in Section IV for appointment in the JAGC.  It provides, in pertinent part, that persons receiving original appointments as Reserve officers of the Army with assignment to the JAGC will be appointed in the highest grade entitled under Title 10, United States Code, section 3359 as follows:

* Commissioned Service Credit of 3 years or more, but less than 7 years will be appointed in the rank of 1LT


* Commissioned Service Credit of 7 or more years, but less than 14 years will be appointed in the rank of CPT

5.  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 be further backdated by the period of commissioned service awarded as constructive credit.  This is in excess of that amount used to establish the officer’s appointment grade.

6.  The branches of the Army are classified as the basic branches and the special branches.  The special branches are each corps of the Army Medical Department (Medical Corps, Army Nurse Corps, Dental Corps, Veterinary Corps, Medical Service Corps, and Army Medical Specialist Corps), the JAGC, and the Chaplains Branch.

DISCUSSION AND CONCLUSIONS:

1.  The applicant had 4 years of commissioned service at the time she accepted appointment as a JAGC officer in the rank of 1LT.

2.  She was commissioned as a 1LT based on the minimum amount required for appointment as a 1LT (3 years) and was granted 1 year time in grade for the remaining year.

3.  While the applicant may not agree with the adjustment to her DOR based on her appointment in the JAGC, it appears that it was done in accordance with the applicable laws and regulations in effect at the time.

4.  It is also noted that the applicant had the option of declining the appointment in the JAGC if she did not agree to the terms of her appointment.  In any event, she was not simply a branch transfer as she contends.  She accepted appointment into a special branch of the service which required a new appointment based on her qualifications for entry into that new branch and it appears that she received the appropriate credit for her appointment.

5.  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 applicant’s 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)                                         AR20100001109





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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)