IN THE CASE OF:	   

		BOARD DATE:	  4 February 2014

		DOCKET NUMBER:  AR20130001458 


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 date of rank (DOR) to major (MAJ)/pay grade O-4 to a date approximately 5 years later.

2.  The applicant states he entered the Army Judge Advocate General's (JAG) Corps on 1 October 1999.  He was promoted to MAJ on 20 April 2007 and separated from active duty on 2 July 2007.

   a.  During his separation processing he was asked if he wanted to transfer to the U.S. Army Reserve (USAR); however, he declined.  He was told that since he only had a few months remaining on his 8-year military service obligation (MSO), he was not being placed in the USAR Individual Ready Reserve (IRR).  He was informed that he was being discharged and he was not required to perform any additional military service.  He acknowledges that he should have independently checked on his military status rather than relying on information from another individual.

   b.  In March 2012, he was appointed in the USAR and his DOR for MAJ was established as 20 April 2007 because his records indicate he did not have a break in service.  As a result, he is considered a MAJ with 12 years of service instead of 8 years of service.  Consequently, he doesn't have the required military education courses completed or any Officer Evaluation Reports (OERs) as a MAJ.  He adds that if his DOR is not adjusted, he will not be competitive for promotion to lieutenant colonel (LTC)/pay grade O-5.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and an email message.

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed in the USAR as a first lieutenant in the JAG Corps on 1 October 1999 for an indefinite term and he entered active duty on that date for a period of 3 years.  He was promoted to captain on 1 June 2000.

2.  On 16 May 2002, he was selected for retention on active duty in a Conditional Voluntary Indefinite service status.

3.  He was appointed in the Regular Army (RA) on 11 November 2005 and promoted to MAJ effective and with a DOR of 20 April 2007.

4.  Headquarters, Fort Monroe, VA, Orders 064-0003, dated 5 March 2007, as amended by Orders 178-0053, dated 27 June 2007, discharged the applicant from the RA, in the rank of MAJ, on 2 July 2007.

5.  The applicant's DD Form 214 shows he was honorably discharged on 2 July 2007.  He completed 7 years, 9 months, and 2 days of total active service.
It also shows in:

* item 6 (Reserve Obligation Termination Date):  "00000000"
* item 9 (Command To Which Transferred):  "Not Applicable"
* item 18 (Remarks), in part:  "Member has completed first full term of service"

6.  U.S. Army Human Resources Command (HRC), Fort Knox, KY, memorandum, dated "3 July 2007," subject:  Appointment as a Reserve Commissioned Officer of the Army Under Title 10, U.S. Code 12201 and 12203, shows the applicant was appointed a Reserve commissioned officer of the Army in the rank of MAJ, JAG Corps, effective 3 July 2007.  It also shows "Date of Acceptance:  20120216" [16 February 2012].

7.  A DA Form 71 (Oath of Office - Military Personnel) shows the applicant executed the oath of office as a Reserve commissioned officer, in the grade of 
O-4, on 16 February 2012.

8.  HRC, Fort Knox, KY, Orders C-03-203555, dated 7 March 2012, released the applicant from the USAR Control Group (Reinforcement) and assigned him to the 78th JAG Detachment, Los Alamitos, CA, effective 7 March 2012.
9.  The applicant was ordered to active duty in support of Operation Enduring Freedom during the period 14 July 2012 through 17 August 2013.

10.  In support of his request the applicant provides an email message from the Chief, Department of the Army Promotions Branch, HRC, dated 4 December 2012, that advised the applicant to apply to this Board for adjustment of his DOR.

11.  In the processing of this case, an advisory opinion was obtained from the Chief, Reserve Component Management, Personnel, Plans, and Training Office, Office of The Judge Advocate General (OTJAG), Washington, DC.

   a.  The advisory official recommends administrative relief and adjustment of the applicant's MAJ DOR to 6 August 2011.

	b.  The advisory official states the applicant was appointed and entered active duty on 1 October 1999 and his MSO expired on 1 October 2007.  He did not resign his Reserve commission when he was discharged on 2 July 2007 because he was told that he didn't have any further military requirement since he was close to his MSO.

   c.  	When the applicant joined the USAR in 2012, he learned that he had not been discharged from the IRR and his DOR for MAJ remained as 20 April 2007. If he had been discharged from the USAR, he would have been reappointed with an adjusted DOR.

   d.  The advisory official adds that the applicant did not perform any military duty between 14 June 2007 and 16 February 2012 and, therefore, he has an OER gap.  As a result, he was non-selected for LTC in 2013 and he faces a second non-selection in 2014 with mandatory discharge in 2019.

   e.  An adjustment of his DOR will allow him to have a sufficient number of OERs to be competitive for promotion to LTC in 2017 and, if selected, he will be able to serve until 2031.

12.  The applicant was provided a copy of the advisory opinion to allow him the opportunity to submit comments or a rebuttal.  On 5 December 2013, he provided his concurrence with the advisory opinion.

13.  Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph     3-5b(2), states that normally, resignations will not be accepted unless on the requested date of separation the officer has fulfilled the 8-year statutory MSO.  To waive an officer's MSO, the Assistant Secretary of the Army (Manpower and Reserve Affairs) (ASA (M&RA)) must find that the officer has no potential for service under conditions of full mobilization.  An officer who requests resignation before completing the 8-year MSO must agree to accept an indefinite appointment in the USAR to complete such service obligation.  The act of taking the Reserve officer's oath by an Active Army officer is sufficient to simultaneously terminate the officer's RA status by operation of law.

14.  Army Regulation 135-100 (Appointment of Commissioned and Warrant Officers of the Army) prescribes policies and procedures for the appointment of commissioned and warrant officers in the Army National Guard of the United States and USAR.  Section IV (Appointment in the JAG Corps), paragraph 3-12 (Appointment grade and DOR), provides that the DOR of an officer commissioned in the Reserve of the Army and assigned to the JAG Corps is the date of appointment.  The DOR will further be backdated by the period of commissioned service credit awarded.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his DOR should be adjusted for a period of approximately 5 years because he was unaware he was placed in the IRR after he was discharged from the RA as a commissioned officer.

2.  The evidence of record shows the applicant was:

* promoted to MAJ (O-4) on 20 April 2007, discharged from the RA on 
2 July 2007, and incorrectly placed in the IRR on 3 July 2000
* from 3 July 2007 through 15 February 2012 in an inactive status (according to HRC) or in no military status (based on his DD Form 214/discharge orders)
* appointed as a Reserve officer in grade O-4 on 16 February 2012

3.  Although OTJAG stated the applicant did not resign his Reserve commission when he was discharged on 2 July 2007, the applicant did not have a Reserve commission to resign; he was a Regular Army officer.  If the Army did not want to release him from his MSO in 2007, the Army was required to have him agree to accept an indefinite appointment in the USAR to complete his MSO (i.e., through 30 September 2007) and to have him take a Reserve officer's oath prior to separating him.  

4.  If in fact the applicant had agreed to accept an indefinite appointment in the USAR to complete his MSO and had taken the Reserve officer's oath in 2007, there would have been no need for him to take another oath in 2012.  Instead, it appears local officials may have accepted his resignation without requesting a waiver of his MSO from the ASA (M&RA) and discharged him (a complete severance of military standing).

5.  Nevertheless, to make the applicant whole and based on a break in service from 3 July 2007 through 15 February 2012:

   a.  A calculation of the period the applicant would have served in grade of O-4 shows the following:

	2007  07  02	date of discharge
	- 2007  04  20	promoted to MAJ (O-4)
	=     00  02  12
	+                   1	day inclusive
	=     00  02  13	time in grade (T(G) as a MAJ (O-4)

   b.  Based on the above TIG as a MAJ, a calculation of the applicant's adjusted DOR shows the following:

	2012  02  16	date of reappointment (grade O-4) in USAR
	- 0000  02  13	TIG as a MAJ (O-4)
	=    2011  12  03	adjusted DOR (i.e., 3 December 2011)

   c.  It is noted that the advisory opinion recommends an adjusted DOR to MAJ (O-4) of 6 August 2011 (i.e., 6 months and 10 days).  However, that grants the applicant creditable service through the MSO date (i.e., as if he took the Reserve officer's oath of office on 3 July 2007) and also reflects an error (of 1 month) in the calculation of the period of service from 20 April 2007 through 30 September 2007 (i.e., 5 months and 10 days).

6.  Thus, in view of all of the foregoing and as a matter of equity, the applicant's records should be corrected to show he was discharged from the Army on 2 July 2007, his MSO was waived, and his adjusted DOR to MAJ (O-4) is 3 December 2011.  In addition, as a result of this correction, any evidence of the applicant's non-selection for promotion to LTC (O-5) by a 2013 LTC Promotion Selection Board should be removed from his Army Military Human Resource Record.


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:

   a.  showing the approving authority approved his discharge from the Army effective 2 July 2007 and waived his military service obligation;

	b.  showing he was reappointed as a Reserve officer on 16 February 2012 in the rank of major/pay grade O-4 with an adjusted date of rank of 3 December 2011; and

   c.  removing any evidence of non-selection for promotion to lieutenant colonel/pay grade O-5 by a 2013 LTC Promotion Selection Board from his Army Military Human Resource Record.




      ____________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)                                         AR20130001458



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ABCMR Record of Proceedings (cont)                                         AR20130001458



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