BOARD DATE:	  25 March 2014

		DOCKET NUMBER:  AR20130005264 


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 his date of rank (DOR) to captain (CPT) be adjusted from 23 May 2012 to 25 March 2010.

2.  He states:

	a.  He changed his specialty branch from the Corps of Engineers to the Judge Advocate General's Corps (JAGC).  As a result of this branch transfer, his DOR to CPT was reset to 23 May 2012.  He believes this change has placed him at a significant disadvantage to his active duty peers.  This is the type of error this Board is designed to address.

	b.  He was commissioned in the U.S. Army Reserve (USAR) on 20 May 2005 after completing 4 years of Reserve Officers' Training Corps (ROTC), his basic branch was the Corps of Engineers, and he was promoted to CPT with an effective date of 25 March 2010.

	c.  He successfully completed a one-year mobilization in support of Operation Enduring Freedom where he served as a Company Commander for the 3rd Battle Command Training Group, 2nd Battalion, 75th Division.  After that mobilization, he attended New York University School of Law where he received his Juris Doctorate in May 2010.

	d.  He was deployed to Afghanistan after law school with the Corps of Engineers where he served as the Officer-in-Charge for the Resident Office located in Kunduz, Afghanistan.
	e.  He branched transferred to the JAGC after his tour in Afghanistan, effective 23 May 2012.  At that time, his DOR for CPT was reset from 25 March 2010 to 23 May 2012.

	f.  His prior-service active duty colleagues who participated in the Funded Education Legal Program (FLEP) retained their original DOR they obtained during their time in their basic branches.  As a result, a prior-service active duty CPT who has branch transferred to the JAGC can expect to be promoted to major within one to two years of their branch transfer date.  A Reserve Component (RC) CPT who has his or her DOR reset will have to wait approximately six to eight years to be eligible for promotion.  He believes this is discriminatory.  This is a clear injustice that places RC officers at a significant disadvantage in terms of career progression.  

	g.  He will be required to serve as a CPT for eight years before he will be eligible for promotion to major.  This will mean that he will have served as a CPT for a total of eleven to thirteen years.  A reset DOR will also greatly limit his opportunities for promotion toward the later years of his career as his mandatory retirement date has not changed.  

3.  He provides:

* Promotion orders
* Reassignment orders
* Five DA Forms 67-9 (Officer Evaluation Report)
* Two DD Forms 214 (Certificate of Release or Discharge from Active Duty)
* Résumé

CONSIDERATION OF EVIDENCE:

1.  At the time the applicant submitted this application, he was serving in the USAR in the rank of CPT.

2.  The applicant was appointed as a Reserve second lieutenant on 20 May 2005 in the Corps of Engineers.

3.  He was promoted to first lieutenant (1LT) on 10 May 2007.  

4.  On 1 June 2007, he was ordered to active duty in support of Operation Enduring Freedom.  He was released from active duty (REFRAD) on 30 May 2008.

5.  He was promoted to CPT on 25 March 2010.
6.  He was awarded a Juris Doctor (J.D.) degree on 12 May 2010 at New York University while still in the USAR.  His transcript indicates he attended the School of Law from Fall 2008 through Spring 2010.  

7.  He provided:

   a.  DA Form 67-9 for the period ending 9 January 2010.  He was rated as a Headquarters Detachment Commander in the rank of 1LT and with a DOR of 
19 May 2007.  

	b.  A DA Form 67-9 for the period ending 5 November 2010.  He was rated as an Assistant Analyst in the rank of CPT and with a DOR of 25 March 2010.  

	c.  A DA Form 67-9 for the period ending 3 May 2011.  He was rated as an Officer-in-Charge, Kunduz Resident Office in the rank of CPT (same DOR as above).  

	d.  A DA Form 67-9 for the period ending 29 January 2012.  He was rated as a Mission Controller Trainer in the rank of CPT (same DOR).  

	e.  A DA Form 67-9 for the period ending 20 October 2012.  He was rated as an Assistant Brigade Judge Advocate in the rank of CPT (same DOR above).  

8.  On 6 November 2010, he was ordered to active duty in support of Operation Enduring Freedom and served in Afghanistan from 14 November 2010 to 10 April 2011.  He was REFRAD on 3 May 2011.  

9.  On 19 September 2011, the applicant signed a Statement of Understanding of New Original Appointment in the USAR JAGC attesting "I understand that I am 
receiving a new original appointment in the USAR with assignment to the JAGC.  This new date of appointment and subsequent DOR will be determined by AR 135-100, paragraph 3-12.  This new date of appointment supersedes any previous DOR held."

10.  In a 21 May 2012 memorandum, the Chief, RC Advocate Recruiting Office, Fort Belvoir, VA, stated the applicant's application for appointment in the rank of CPT, JAGC, USAR, was approved with assignment to the 154th Legal Operations Detachment, Alexandria, VA.  The official further stated:

	a.  the applicant should be appointed as a CPT with 0 years, 0 months, and 1 day time in grade as of the date of the memorandum in accordance with (IAW) Army Regulation (AR) 135-100 (Appointment of Commissioned and Warrant Officers of the Army), paragraph 3-12;
	b.  the applicant should be credited with 7 years, 0 months, and 1 day of prior commissioned service IAW AR 135-100,Table 3-5;

	c.  the applicant did not receive constructive credit IAW AR 135-100, 
Table 3-4, as he served in the USAR concurrently while attending law school; and

	d.  the applicant's orders must state he must successfully complete the JAG Officer Basic Course within 12 months of the effective date of appointment or be discharged and complete the Direct Commission Officer Course.

11.  He was appointed as a Reserve CPT on 24 May 2012 JAGC in specialty 27A (Judge Advocate General).  His appointment memorandum shows the entry "00 yrs, 00 mos, 00 days" for constructive credit.  

12.  In the processing of this case, an advisory opinion was obtained from the Chief, Officer Promotions, U.S. Army Human Resources Command (HRC), Fort Knox, KY who stated:

   a.  the applicant's request that his DOR to CPT be changed from 23 May 2012 to 25 March 2010, his DOR prior to his appointment as a JAGC officer, is without merit;  
   
   b.  the applicant was appointed as a JAG officer in the USAR with a DOR in accordance with AR 135-100; and  
   
   c.  the applicant's 7 years, 0 months, and 1 day time in grade (sic) per AR 135-100, paragraph 3-12(4)b(1) was considered.  He did not receive constructive credit because he served in the USAR concurrently while attending law school.

13.  A copy of the advisory opinion was forwarded to the applicant to allow him to provide comments or a rebuttal.  On 29 November 2013, the applicant submitted a rebuttal in which he stated:

	a.  The advisory opinion does not mention his original claim regarding the concept of constructive credit is discriminatory as applied to Reserve officers when compared to the process used for active duty branch transfers.  He reiterated that active duty officers who branch transfer to the JAGC retain their original DOR and are afforded the opportunity to accumulate time-in-grade while attending law school.  As a result, a prior-service active duty CPT can expect to be promoted to major within one to two years following his/her branch transfer date.  However, Reserve officers with a reset DOR will have to wait approximately six to eight years from their branch transfer date to be eligible for promotion.  

	b.  The calculation cited in the advisory opinion does not appropriately value his time spent on active duty during law school.  After completion of his first year at law school, he was involuntarily mobilized to Fort Dix for a 12-month tour in support of Operation Enduring Freedom.  Upon graduating from law school in 2010, he deployed to Afghanistan for a 6-month tour where he served as the Officer-in-Charge for the Corps of Engineers Resident Office.  The regulation cited in the advisory opinion did not accurately value or account for his time on active duty in support of Operation Enduring Freedom.  

14.  In support of his rebuttal to the advisory opinion, he provided a DA Form   67-9 for the period ending 30 August 2013 which rated him as Trial Defense Counsel for 16th Legal Operations Detachment.  This evaluation report shows his branch as JAG and his rank as CPT (DOR 25 March 2010).  His rater evaluated him as "Outstanding Performance, Must Promote" and his SR assessed him as "Best Qualified."

15.  Army Regulation 135-100 prescribes policy and procedures for the appointment of commissioned and warrant officers in the Army National Guard of the United States and the USAR.  

   a.  Paragraph 3-12a(1) states 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, U. S. Code, section 3359 as follows:
   
		Table 3-3:  if granted commissioned service credit of 7 years or more but less than 14 years, then appointment grade will be CPT.  A Note to this table states, "In determining the appointment grade of a prospective JAGC officer, the years of commissioned service credit will be the sum of all credit awarded for constructive service credit and prior commissioned service under paragraphs (2), (3), and (4) below.  A period of time will be counted only once when computing credit (emphasis added)…"

   b.  Paragraph 3-12a(2) states that constructive service credit will be computed and awarded as follows:

		Table 3-4:  3 years credit for award of the first professional law degree.

   c.  Paragraph 3-12a(3) states that credit for prior commissioned service will be computed as follows:

		Table 3-5(a):  1 year credit for each year of active duty commissioned service to include periods of annual training or other active duty for training performed while a member of any component of the military services; and

		Table 3-5(b):  1 year credit for commissioned service in an active status while serving in any component of the military service, but not on extended active duty.

   d.  Paragraph 3-12a(4) states, "An officer completing an educational program [who] qualifies for constructive service credit under (2)(a) above, while in an active commissioned status, in less than 3 years may be credited with constructive service credit in the amount by which 3 years exceeds the time spent in the qualifying educational program in an active status."

   e.  Paragraph 3-12b(1) states that 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 credit awarded under a above.  This is in excess of that amount used to establish the officer's appointment grade.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was appointed as a second lieutenant in the USAR on 20 May 2005 in the Corps of Engineers.  

2.  He was promoted to CPT on 25 March 2010.  His transcript shows he attended law school concurrently serving in an active status in the USAR.  He was awarded a J.D. degree on 12 May 2010.  During this period, he completed a six-month period of active duty in Afghanistan in the grade of CPT.  

3.  He was appointed as a Reserve CPT in the JAGC on 24 May 2012.  The RC Advocate Recruiting Office, Fort Belvoir, VA, had stated the applicant was granted 7 years, 0 months, and 1 day of prior commissioned service but would not receive constructive credit as he served in the USAR concurrently while attending law school.  It appears the RC Advocate Recruiting Office had policy guidance that is not available to this Board.

4.  He acknowledged on 19 September 2011 that he was receiving a new date of appointment and his subsequent DOR would be determined by Army Regulation 135-100.  He had the option not to accept a JAGC appointment and retain his original CPT DOR as a Corps of Engineers officer.  However, he took his new oath of office as a JAGC CPT on 24 May 2012.

5.  When he was in the Corps of Engineers, he competed against other RC Army Promotion List officers for promotion.  Once he accepted appointment as a JAGC CPT, his peers and competitors became other RC JAGC CPTs.  The rules for appointment level the competition base for all new JAGC appointees in their new branch.  There is no injustice or inequity in doing so.

6.  Based on the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20130005264



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ABCMR Record of Proceedings (cont)                                         AR20130005264



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