IN THE CASE OF:	

		BOARD DATE:	  20 October 2011

		DOCKET NUMBER:  AR20100025271 


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 he be granted constructive credit for 3 years of law school in computing his date of rank (DOR) to captain (CPT).

2.  The applicant states The applicant states that his DOR of 9 July 2005 should be changed to 9 July 2002 to account for his prior commissioned service and constructive service credit for attendance of law school.  He goes on to state that he is entitled to constructive service credit in order to meet Congressional intent as established in Title 10, U.S. Code, section 533; Department of Defense Instruction (DODI) 1312.03, Army Regulation 600-8-29; and Army Regulation 601-100.

3.  The applicant provides a list of supporting documents in his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army (RA) on 20 June 1991 and served as a cannon crewman until he was honorably released from active duty (REFRAD) on 18 August 1993 to accept a Reserve Officers’ Training Corps (ROTC) contract.  He had served 2 years, 1 month, and 29 days of active service.

2.  On 10 May 1997, he accepted an appointment as a U.S. Army Reserve (USAR) second lieutenant in the Army Nurse Corps on 10 May 1997.  He was ordered to active duty on 27 June 1997 for a period of 4 years.  He was promoted to the rank of first lieutenant on 30 December 1998 and to the rank of CPT on 1 January 2001.  He was honorably REFRAD on 26 June 2001 due to completion of required service. 

3.  On 2 January 2006, the applicant accepted a commission as a Regular Army 
Judge Advocate General’s Corps (JAGC) CPT.  His DOR was adjusted to 9 July 2005 based on his active service as a CPT.

4.  In the processing of this case a staff advisory opinion was obtained from the Office of the Judge Advocate General, Plans, Personnel, and Training Office (PPTO) which opines that after coordination with the Human Resources Command (HRC), a determination was made that the applicant’s DOR is correctly computed by adding his prior active service in the rank of CPT and that no further adjustment is authorized.  The authority relied upon by the PPTO was Army Regulation 600-8-29 (Officer Promotions), paragraph 1-44c (Grade and Active Duty (ADOR) of other than Regular Army JAGC officers upon placement on the Active Duty List (ADL).  The opinion was returned for clarification and essentially the same response was received.

5.  The advisory opinion was provided to the applicant for comment and he responded to the effect that the opinion fails to address the fact that the 
U.S. Code. and the DODI supersede the authorities used by the PPTO.  Additionally, the PPTO did not address his cites and contentions or the previous ruling by the Board in a similar case involving a JAGC CPT.  Accordingly, he should be granted 3 years of constructive service credit for his law school attendance.

6.  Army Regulation 135-100 (Appointment of Commissioned and Warrant Officers of the Army), paragraph 3-12, provides that an officer shall receive 3 years constructive credit for his professional law degree.  Under the provisions of DODI 1312.03, paragraph 6.1.1.3., and Army Regulation 135-100, paragraph 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 status includes time spent in the Individual Ready Reserve.  An officer's grade at the time of appointment is computed by adding prior commissioned service and constructive service credit.

7.  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 will be as as a captain.

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

9.  DODI Number 1312.03 (Service Credit for Commissioned Officers) provides that the entry grade and DOR or promotion service credit in the grade of a commissioned officer (other than an officer in the health professions) shall be determined by the entry grade credit awarded upon appointment.  The entry grade credit that is awarded shall be the sum of the prior commissioned service allowed and the amount of the constructive service credit allowed.  A period of time shall be counted only once when computing credit.  For Judge Advocates, the entry grade for appointment designation or assignment shall not exceed 3 years.  It also provides, in pertinent part, that the intent of constructive credit was to provide grade and rank parity for individuals being commissioned after completing advanced educational requirements (i.e. JAGC, Medical Corps and Chaplains) as compared to those commissioned upon obtaining a baccalaureate degree. 

10.  Army Regulation 600-8-29 (Officer Promotions) prescribes the policies and procedures governing the promotion of commissioned and warrant officers on the ADL.  Paragraph 1-38 of that regulation provides that the ADOR is used to determine the eligibility of officers on the ADL for promotion.  The ADOR of officers not managed by HRC will be jointly determined by HRC and The Judge Advocate General (TJAG) in the applicant’s case.  Paragraph 1-44e provides that the ADOR of an other than RA (OTRA) JAGC officer placed on the ADL in his or her current grade of CPT or higher will be the date of placement on the ADL backdated by the period served on active duty in the current or higher grade. 

11.  Title 10, U.S. Code, section 533(b)(1)(A) provides that constructive service credit shall be awarded to an officer receiving an original appointment in the Regular Army for advanced education and training that is a prerequisite for the officer’s appointment; however, section 533(d)(1) provides that an officer may not be credited for advanced education or training obtained while the service member served as a commissioned officer on active duty or in an active status.

12.  Title 10, U.S. Code, section 101(d)(3) defines active status as being a member of a Reserve Component who is not in the inactive National Guard , or on an inactive list, or in the Retired Reserve.  The USAR Control Group (Reinforcement) is an active status category.

13.  Title 10, U.S. Code, section 101(b)(10) provides that an “original appointment” as an officer in a regular or reserve component refers to that member’s most recent appointment in that component that is neither a promotion nor a demotion. 

14.  Title 10, U.S. Code, section 533(a)(1) provides that for the purpose of determining grade and date of rank within grade of a person receiving an original appointment in a commissioned grade in the Regular Army, an officer will be credited at the time of appointment with any active commissioned service he performed in an armed force.  Section 533(f)(2) provides that a Reserve officer not on the Active Duty List at the time of original appointment will be appointed with the same date of rank as the grade or rank that the officer would have held had the officer been serving on the active duty list on the date of appointment as a regular officer.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he is entitled to constructive service credit for his 3 years of law school has been noted and appears to lack merit because by law, an officer who is in an active status in the USAR is not entitled to constructive credit for advanced education when they receive an appointment in the Regular Army.

2.  The applicant already had a USAR commission in the rank of CPT in the Army Nurse Corps and was serving in an active status in the USAR Control Group (Reinforcement) at the time he was appointed as a JAGC officer.  When he was appointed as a Regular Army JAGC officer, he was accessed in the rank of CPT and his DOR was backdated to include the amount of time he had served on active duty in the rank of CPT (5 months and 23 days).  

3.  The applicant was not granted constructive service credit for attendance at law school because he remained in an active status in the Individual Ready Reserve (IRR) which, by law, precluded him from receiving constructive service credit for law school attendance.  Accordingly, he is only entitled to credit received for his service on active duty as a captain.

4.  The applicant’s contention that Army Regulation 135-100, paragraph 3-12 provides for constructive service credit for advanced education to officers (and JAGs) upon their original appointment in the USAR has been noted and found to lack merit as the applicant was appointed as a JAG CPT in the Regular Army.

5.  Accordingly, it appears that his DOR was properly adjusted at the time of his appointment as a Regular Army JAG CPT and there appears to be no basis to grant him additional credit.

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)                                         AR20100025271





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ABCMR Record of Proceedings (cont)                                         AR20100025271



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