IN THE CASE OF:	  

		BOARD DATE:	 13 December 2011

		DOCKET NUMBER:  AR20110017564 


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 the following corrections:

* redetermination of his entry-grade credit to total 3 years, 9 months, and 18 days
* correction to his Regular Army (RA) appointment orders to show he was appointed in the rank of captain (CPT)
* adjustment to his current date of rank (DOR) to CPT
* award of back pay and allowances in the rank of CPT
* correction to all other military records in accordance with any findings made

2.  He states his DOR to CPT was erroneously determined to be 28 January 2011 because applicable law, instructions, and regulations were not followed by the Judge Advocate General’s Corps (JAGC) Personnel, Plans, and Training Office (PP&TO) and the U.S. Army Human Resources Command (HRC).

3.  He also states:

	a.  He was appointed as a Judge Advocate (JA) first lieutenant (1LT) in the U.S. Army Reserve (USAR) on 11 November 2009 and awarded 3 years of constructive service credit (CSC) for attendance at law school.  He was also appointed with 1 year of time in grade.  He graduated from the JA Officer Basic Course (JAOBC) on 5 May 2010.

	b.  While a student at JAOBC he submitted an application for an RA appointment in the JAGC.  His application was accepted in April 2010.  From 7 May to 18 June 2010, he was ordered to attend the Direct Commission Course at Fort Benning, Georgia.  He graduated on 18 June 2010.

	c.  On 21 April 2010, he signed a DD Form 368 (Request for Conditional Release) and forwarded it to his USAR unit for completion.  The form released him from the USAR effective the day immediately before his appointment in the RA.  On 9 August 2010, he received orders pursuant to his RA appointment.  On 30 August 2010, he executed an oath of office for his RA appointment.

	d.  Around 7 October 2010, he received an email containing orders amending his prior active duty (AD) orders.  The amended orders changed his rank from CPT to 1LT and provided CSC pursuant to Title 10, U.S. Code, section 533 that was not provided in his initial orders.

	e.  On 29 December 2010, HRC published orders promoting him to CPT with an effective date and DOR of 28 January 2011.  Since November 2010, he has attempted to resolve this matter through administrative means and those means have been exhausted.

	f.  The PP&TO and HRC's determination of his CPT DOR of 28 January 2011 is fundamentally inequitable when measured against the promotion plans for the 181st and 182nd JAOBC.  The time he spent in the USAR had absolutely no value for purposes of RA service.  The award of the total sum of entry-grade credit was ignored upon his acceptance of his original RA appointment.  While the PP&TO and HRC amended his orders to award CSC, they failed to follow applicable law and regulations and award credit for his prior commissioned service.

	g.  Federal law mandated an award of the sum of commissioned service in an active status and CSC upon appointment in the RA.  As such, he should have (but did not) received the full amount of entry-grade credit mandated by Federal law in accordance with Title 10, U.S. Code, section 533, because his 30 August 2011 RA appointment was his first appointment in the RA and that appointment constituted an original appointment as termed in Title 10, U.S. Code, section 533.

	h.  Therefore, under Title 10, U.S. Code, section 533, he was entitled to credit for his prior commissioned service.  He likewise was entitled to CSC under section 533 for his attendance at law school.  PP&TO and HRC awarded him 3 years of CSC but failed (and now refuses) to award credit for his prior USAR commissioned service.

	i.  Department of Defense Instruction (DODI) 1312.03 corresponds to Title 10, U.S. Code, section 533, and further explains how entry grade shall be determined:

6.1  Entry-grade Credit.  The entry grade and DOR or promotion service credit in grade of a commissioned officer 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 CSC allowed.  A period of time shall be counted only once when computing credit.

6.1.1  Prior Active Commissioned Service.  Credit for prior service as a commissioned officer may not exceed 1 year for each of the following:

6.1.1.1  AD commissioned service or commissioned service in an active status (except as a commissioned warrant officer) including periods of ADT.

4.  Synthesizing the requirements of Title 10, U.S. Code, section 533, and DODI 1312.03 in determining his entry grade upon his original appointment in the RA on 30 August 2010, PP&TO and HRC were required to calculate and award the sum of his commissioned service in an active status and his CSC for law school.  When properly performed, he should have been appointed with the following calculations:

* prior commissioned service in an active status – 9 months and 18 days
* CSC – 3 years
* total entry-grade credit earned – 3 years, 9 months, and 18 days

5.  He further states that in the case of a former Navy JAG who accessed into the USAR JAGC, the PP&TO and HRC erroneously appointed that individual as a 1LT in the USAR JAGC with 3 years, 7 months, and 4 days of time in grade.  They did not award him any CSC for law school attendance.  The Army Board for Correction of Military Records (ABCMR) concluded and recommended the individual should have received 3 years of CSC for law school for a total of 7 years, 1 month, and 23 days of entry-grade credit to include time spent in the Navy Individual Ready Reserve (IRR).

6.  As a result, much like the case of the JA in the ABCMR's opinion, PP&TO and HRC incorrectly determined his DOR.  The ABCMR in accordance with this precedent is bound to rectify this error.


7.  He provides:

* USAR appointment memorandum, dated 10 November 2009
* DA Form 71 (Oath of Office), dated 11 November 2009
* USAR appointment orders, dated 13 November 2009
* annual training orders, dated 30 November 2009
* amended orders, dated 2 December 2009 and 5 January 2010
* active duty for training (ADT) orders, dated 26 January and 9 April 2010
* DD Form 368, dated 25 May 2010
* DD Form 220 (Active Duty Report), dated 12 June 2010
* DD Form 214 (Certificate of Release or Discharge from Active Duty) ending 18 June 2010
* AD orders, dated 9 August 2010
* DA Form 71, dated 30 August 2010
* DA Form 1506 (Statement of Service for Computation of Length of Service for Pay Purposes), dated 31 August 2010
* CPT promotion orders, dated 29 December 2010
* email correspondence to and from a PP&TO Boards officer, dated January 2011
* Retirement Detail History, dated 25 February 2011
* reply from the Chief, PP&TO, dated 18 July 2011

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he was awarded a law degree on 8 May 2004.

2.  He was appointed in the USAR JAGC as a 1LT effective 11 November 2009 with 3 years of CSC.

3.  He was ordered to ADT for JAOBC with a reporting date of 7 February 2010.

4.  On 21 April 2010, he tendered his resignation from the USAR to accept an RA appointment.

5.  A DA Form 1059 (Service School Academic Evaluation Report) shows he attended JAOBC from 7 February 2010 to 5 May 2010.

6.  His resignation request was approved on 25 May 2010.

7.  He was again ordered to ADT with a reporting date of 7 May 2010.  He was issued a DD Form 214 releasing him from AD on 18 June 2010.

8.  On 30 August 2010, he completed a DA Form 71 for appointment in the RA JAGC as a CPT.

9.  A DA Form 1506, dated 31 August 2010, shows the following service and computations for him:

* USAR from 11 November 2009 to 6 February 2010, 2 months and 25 days
* AD from 7 February to 18 June 2010, 4 months and 12 days
* USAR from 19 June to 29 August 2010, 2 months and 11 days
* U.S. Army from 30 August 2010 to present

10.  On 1 October 2010, HRC published orders changing his appointment in the RA as a CPT to read he was appointed as a 1LT.  The orders state he was credited with 3 years of CSC for education (law school) for the grade of 1LT per Title 10, U.S. Code, section 533.

11.  On 29 December 2010, HRC published orders promoting him to CPT with an effective date and DOR of 28 January 2011.

12.  In an email to the applicant, dated 18 January 2011, an officer in the PP&TO office stated, "unfortunately paragraph 1-44 is the controlling provision, but he agreed that the result wasn't very equitable (he was not the first person that that had happened to)."

13.  In a memorandum, dated 18 July 2011, the Chief, PP&TO, JAGC, advised the applicant of the following:

	a.  His request for recalculation of his active DOR (ADOR) was denied.  In accordance with Army Regulation 600-8-29 (Officer Promotions), paragraph 
1-38, that office coordinated with HRC to jointly determine his ADOR.  That office reviewed his request and forwarded a copy of his request to the Promotions Branch, HRC.  His request could not be approved because it conflicted with Army Regulation 600-8-29.

	b.  Army Regulation 600-8-29, paragraph 1-44, controls how his ADOR to 1LT was calculated when he entered AD in August 2010.  Before entry on AD, he was a Reserve 1LT JA with less than 18 months of service.  In accordance with Army Regulation 600-8-29, paragraph 1-44, his 1LT ADOR was set 18 months prior to his date of appointment on AD.

	c.  He was included on the promotion list for the 182nd JAOBC, the first CPT promotion list after entry on AD.  That list was approved in December 2010 and HRC assigned sequence numbers according to the precedence of rank established in Army Regulation 600-8-29, paragraph 1-39.  His 1LT ADOR of 29 January 2009 placed him behind the 1LT's who began the 182nd JAOBC on 4 July 2010 (all of whom had 1LT ADOR's no later than 4 January 2009).  Promotions off the list were made in sequence number order leading to his promotion to CPT on 28 January 2011.

14.  Army Regulation 600-8-29 prescribes the policies and procedures governing promotion of Army commissioned officers on the Active Duty List (ADL).  Paragraph 1-38 states the ADOR is used to determine the eligibility of officers on the ADL for promotion.  Paragraph 1-44c states a 1LT JA who was originally appointed in that grade and who has 18 months or less of 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.

15.  Army Regulation 600-8-29 also states that upon appointment as a JAGC officer, commissioned service starts on the date of appointment and that no credit for other commissioned service is permissible unless the grade is CPT or higher.  The requirement for promotion from 1LT to CPT is 18 months.

16.  Army Regulation 600-8-29 further states the ADOR is the date used in determining relative seniority among officers of the same grade on the ADL.  For USAR, permanent DOR is the effective date of promotion eligibility.

17.  Title 10, U.S. Code, section 533(a)(1), states that for the purpose of determining grade and rank within grade, a person receiving an original appointment in the RA shall be credited at the time of appointment with any active commissioned service (other than as a warrant officer) that he performed.  

18.  Title 10, U.S. Code, section 533(a)(2) authorizes the Secretary of Defense to prescribe regulations to authorize the Service Secretaries to limit or deny any prior-service credit in those cases where the officer is given constructive credit per Title 10, U.S. Code, section 533(b).

19.  Title 10, U.S. Code, section 533(b)(1)(A), states that for the purpose of determining the grade and rank within a grade of a person receiving an original appointment in a commissioned grade in the RA, such person shall be credited with 1 year each for each year of advanced education beyond the baccalaureate degree level.

20.  Title 10, U.S. Code, section 533(a)(1), states that for the purpose of determining grade and rank within grade, a person receiving an original appointment in the RA shall be credited at the time of appointment with any active commissioned service (other than as a warrant officer) that he performed.  

21.  Title 10, U.S. Code, section 533(a)(2), authorizes the Secretary of Defense to prescribe regulations to authorize the Service Secretaries to limit or deny any prior service credit in those cases where the officer is given CSC per Title 10, U.S. Code, section 533(b).

22.  Title 10, U.S. Code, section 533(b)(1)(A), states that for the purpose of determining the grade and rank in a grade of a person receiving an original appointment in a commissioned grade in the RA, such person shall be credited with 1 year for each year of advanced education beyond the baccalaureate degree level.

23.  DODI 1312.03 (Service Credit for Commissioned Officers), paragraph 6.1.1, states credit for prior service as a commissioned officer may not exceed 1 year for each year of AD commissioned service, commissioned service in an active status including periods of ADT, and commissioned service for persons appointed in the Reserve.

24.  DODI 1312.03, paragraph 6.1.2, states CSC is to provide grade and DOR comparability for a person commissioned after obtaining additional education. Paragraph 6.1.2.1 states a period of time shall be counted only once when computing CSC.  Paragraph 6.1.2.4.2 states that entry grade of JA's for appointment shall not exceed 3 years.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was appointed in the USAR as a 1LT effective 11 November 2009 with 3 years of CSC.  He was only entitled to award of 3 years of CSC for his law degree and these 3 years of CSC led to his being appointed in the USAR as a 1LT.  

2.  He was appointed in the RA as a 1LT effective 30 August 2010.  His 1LT DOR was adjusted to 29 January 2009 and he was promoted to CPT with a DOR of 28 January 201.

3.  He was not entitled to award of additional CSC at the time of his RA appointment.  He had already been credited with 3 years of CSC for the rank of 1LT.  

4.  Title 10, U.S. Code, section 533(a)(2) authorizes the Secretary of Defense to prescribe regulations to authorize the Service Secretaries to limit or deny any prior service credit in those cases where the officer is given constructive credit in accordance with Title 10, U. S. Code, section 533(b).  Section 533 only requires credit for prior active service (duty).  DoDI 1312.03 allows (but does not mandate) credit for prior active status.

5.  Having less than 18 months of service in an active status prior to his placement on the ADL, his ADOR is correct as 29 January 2009.  The pertinent regulation specifies that a 1LT, JAG, 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 appointment (30 August 2010).

6.  His ADT for JAOBC performed prior to his entry on the ADL does not change his ADOR.

7.  The promotion list for the 182nd JAOBC, which was the first CPT promotion list after his RA appointment, was approved in December 2010.  HRC assigned sequence numbers according to the precedence of rank.  His ADOR for 1LT of 29 January 2009 was later than all of the JAOBC 1LT ADOR's.  Departmental officials properly computed his ADOR for 1LT and DOR for CPT in accordance with pertinent regulations.  He has not shown that his DOR relative to other members of that class is inequitable.

8.  It appears the Army's entry grade for DOR determination and denial of prior-service credit was legal.  Based on his 1LT ADOR he also has not shown he was not properly promoted to CPT prior to 28 January 2011.  There is no evidence of record and he has provided non to show he is entitled to the requested relief.

9.  He cited a previous ABCMR case in which a former Navy JA was not awarded CSC for his law degree.  In that case, the ABCMR should have awarded 3 years of CSC for law school for a total of 7 years, 1 month, and 23 days of entry-grade credit, to include time spent in the Navy IRR.

10.  The basic regulation which provided policy and guidance to this Board states that the ABCMR will consider individual applications that are properly brought before it and will decide cases on the evidence of record.  This essentially means that cases are considered and the evidence is judged on its own merits.  Each case that is brought before Board may have some similarities; however, each has many differences and therefore what was done in one case and the outcomes achieved cannot necessarily be applied to another similar or like case. 

11.  The facts and applicable regulatory provisions in the cited case are substantially different from those in the applicant's case because he was awarded CSC for his law degree whereas that previous applicant had not.

12.  In view of the foregoing, there is no basis for granting him the requested 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.



      ___________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)                                         AR20110017564



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ABCMR Record of Proceedings (cont)                                         AR20110017564



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