IN THE CASE OF:
BOARD DATE: 27 August 2013
DOCKET NUMBER: AR20120020310
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 adjustment of his mandatory removal date (MRD) to 1 April 2021 pursuant to Title 10, U.S. Code, section 14706 to account for his time as a Reserve commissioned officer in the Individual Ready Reserve (IRR) as a student in law school.
2. He states:
a. he was commissioned as a second lieutenant (2LT) in the U.S. Army Reserve (USAR) via the Reserve Officers' Training Corps (ROTC) Early Commissioning Program (Military Junior College) on 12 May 1990.
b. he had 36 months in which to obtain a baccalaureate degree pursuant to his ROTC Early Commissioning agreement.
c. he was transferred from the USAR Control Group (Officer Active Duty Obligor) to the Illinois Army National Guard (ILARNG) effective 28 November 1990. He requested transfer from the ILARNG to the IRR on 1 February 1993 so that he could attend law school. His request was approved, then he was transferred to the IRR on 31 July 1993. He attended law school from on or about 1 August 1993 to 25 May 1996 and was awarded the Juris Doctor (J.D.) degree.
d. he applied for reappointment as a judge advocate officer in the USAR on or about 22 October 1996 after passing the Illinois Bar Examination and
becoming a licensed attorney. His application for reappointment as a Judge Advocate General (JAG) officer was granted and he was reappointed a first lieutenant (1LT) in the USAR on 7 April 1997. He was subsequently reassigned to a USAR legal unit as a JAG officer on 11 April 1997.
e. pursuant to Title 10, U.S. Code, section 14706 (a)(3), service towards calculation of MRD does not include "Service after appointment as a commissioned officer of a reserve component while in a program of advanced education to obtain the first professional degree required for appointment...to a professional specialty, but only if that service occurs before the officer commences initial service on active duty or initial service in the Ready Reserve in the specialty that results from such a degree." Based on this statute, he is entitled to have his MRD adjusted for his time in law school, which led to his reappointment as a JAG officer in the USAR. The time between 1 August 1993 and 25 May 1996 was 2 years, 9 months, and 25 days. Consequently, this amount of time should be added to his MRD as it currently stands (1 June 2018). Therefore, his MRD should be 1 April 2021.
3. He provides:
* Two DA Forms 71 (Oath of Office - Military Personnel)
* Five memoranda
* Two reassignment orders and one discharge order
* Two transcripts
* Letter from the JAG's School
* Internet printout from the Legal Information Institute
CONSIDERATION OF EVIDENCE:
1. The applicant is currently serving in the USAR in the rank of lieutenant colonel (LTC).
2. He was born on 26 September 1970. On 12 May 1990, he was appointed as a Reserve commissioned officer in the rank of 2LT.
3. Orders 04-013206, issued by the USAR Personnel Center, dated 30 April 1991, released him from the USAR Control Group (Officer Active Duty Obligor) and reassigned him to the ILARNG, effective 27 November 1990.
4. He was awarded a Bachelors of Arts degree in Political Science on 19 December 1992 from Eastern Illinois University.
5. In a 1 February 1993 memorandum, he requested transfer from the ILARNG to the USAR Control Group (IRR), effective July 1993. He stated he was leaving the State to attend law school.
6. On 12 July 1993, he voluntarily tendered his resignation as an officer of the ILARNG under the provisions of National Guard Regulation 635-100 (Personnel Separations), paragraph 5a(3). He requested transfer to the USAR with assignment to the USAR Control Group (Reinforcement) under the provisions of Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers). He indicated he had a remaining reserve obligation.
7. On 15 July 1993, Orders 135-118 were published by the Department of Military Affairs, State of Illinois separating him from the ILARNG and assigning him to the USAR Control Group (Reinforcement) on 31 July 1993.
8. His service record is void of evidence that indicates he applied for a post-graduate delay to attend law school.
9. He provided a transcript from the Northern Illinois University that indicates he attended the University of Detroit from August 1993 to May 1994. He was admitted to the Northern Illinois University on 23 August 1994 and he was awarded a J.D. degree on 25 May 1996.
10. On 11 April 1997, he was reappointed as a Reserve commissioned officer as a JAG officer in the rank of 1LT.
11. On 23 April 1997, Orders C-04-716359, issued by the U.S. Total Army Personnel Command released him from the USAR Control Group (Annual Training) and reassigned him to the 91st Judge Advocate Team Legal Service, effective 11 April 1997.
12. In the processing of this case, on 5 February 2013 an advisory opinion was obtained from the Deputy Chief, Personnel, Plans and Training Office, Army Reserve Management, Office of The Judge Advocate General (OTJAG). the advisory official stated:
a. the applicant was commissioned into the U.S. Army on 12 May 1990 and as part of his commission, he was granted up to 36 months to complete his baccalaureate degree. He graduated on 19 December 1992 with a Bachelors of Arts degree.
b. the applicant served as a 2LT in the ILARNG from 27 November 1990 to 31 July 1993. He requested transfer to the USAR Control Group (IRR) to attend law school, attended law school from August 1993 to May 1996, graduated with a J.D., and was appointed into the JAG Corps on 7 April 1997.
c. there is no indication the applicant applied for a post-graduate delay in accordance with Army Regulation 601-25 (Delay in Reporting for and Exemption from Active Duty, Initial Active Duty for Training, and Reserve Corps), paragraph 2-5. This regulation explains how a Soldier can apply for a post graduate delay. The period of delay for law school is granted in 1-year increments with a maximum total of 36 months. The JAG is the approval authority for all post-graduate studies in law.
d. The advisory official stated the applicant has served as a member of the JAG Corps since 1997. Administratively, had he applied he would have been granted a post-graduate delay to attend law school. This advisory official recommended the applicant be allowed to disqualify his years in law school from August 1993 to May 1996 from his total years of service.
13. On 28 February 2013, a copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal. He did not respond.
14. A review of his personnel record in the U.S. Army Human Resources Command (HRC) - Integrated Web Services revealed his MRD as 1 June 2018.
15. Army Regulation 601-25 prescribes the policies and procedures for delays in reporting for and exemptions from periods of active duty, initial active duty for training, and Reserve forces duty. Paragraph 2-5a (Request for delay or exemption) states an ROTC graduate or potential graduate may request a postgraduate delay for one of the reasons and periods shown in table 2-1. ROTC applicants must be enrolled for full-time graduate or professional study in an approved and recognized institution of higher education. Any law school attended must be approved by the American Bar Association. Classes must begin the first regular semester or quarter following appointment.
16. Title 10, U.S. Code, section 14706(a)(3) (Computation of Total Years of Service), states for the purpose of this chapter and chapter 1407 of this title, a Reserve officer's years of service include all service of the officer as a commissioned officer of a uniformed service other than the following:
a. service as a warrant officer,
b. constructive service, and
c. service after appointment as a commissioned officer of a reserve component while in a program of advanced education to obtain the first professional degree required for appointment, designation, or assignment to a professional specialty, but only if that service occurs before the officer commences initial service on active duty or initial service in the Ready Reserve in the specialty that results from such a degree.
17. Title 10, U.S. Code, section 14706(c) states that for purposes of subsection (a)(3), an officer shall be considered to be in a professional specialty if the officer is appointed or assigned to the Medical Corps, the Dental Corps, the Veterinary Corps, the Medical Service Corps, the Nurse Corps, or the Army Medical Specialists Corps or is designated as a chaplain or judge advocate.
DISCUSSION AND CONCLUSIONS:
1. The applicant was initially appointed as a Reserve commissioned officer on 12 May 1990 and he was assigned to the ILARNG on 27 November 1990. He was awarded a Bachelors of Arts degree in Political Science on 19 December 1992.
2. The evidence of record shows he attended the University of Detroit from August 1993 to May 1994 and Northern Illinois University from 23 August 1994 to 25 May 1996. He was awarded a J.D. Degree for Law on 25 May 1996.
3. His service record shows his current MRD is 1 June 2018.
4. The evidence of record further shows he was reappointed as a Reserve commissioned officer on 11 April 1997 in the JAG Corps.
5. By law, a Reserve officer's years of service include all service of the officer as a commissioned officer of a uniformed service other than service after appointment as a commissioned officer of a reserve component while in a program of advanced education to obtain the first professional degree required for appointment, designation, or assignment to a professional specialty.
6. Based on the advisory opinion from the OTJAG and the law, the applicant's years in law school from August 1993 to May 1996 should be excluded from his total years of service.
7. In view of the foregoing, it would be appropriate to adjust his MRD from 1 June 2018 to 1 April 2021.
BOARD VOTE:
___X___ ___X____ ___X____ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adjusting his MRD from 1 June 2018 to 1 April 2021.
_______ _ 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.
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