IN THE CASE OF:	  

		BOARD DATE:	  30 July 2014

		DOCKET NUMBER:  AR20130013309 


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 an adjustment of her date of rank (DOR) to captain.

2.  The applicant states:

	a.  She was given 1 year, 10 months, and 12 days time-in-grade (TIG) as a captain when she came back into the Army National Guard (ARNG) as a Judge Advocate General (JAG) in 2010 and her DOR was 16 December 2008.  Prior to release from active duty in 2006, she had 5 years and 2 months TIG as a captain/O-3 with a DOR of 1 August 2001.  She would like her DOR as a captain to be corrected to August 2005.

	b.  Her appointment in the ARNG with 1 year, 10 months, and 12 days is unjust because there was no justification for not reinstating her with her prior TIG. Despite her lack of JAG experience, she did have 12 years of military experience (total) with 3 years of legal experience when she came back in as a JAG.  Her break in service did not deteriorate her military service or leadership skills.  Despite not being given her correct TIG she was immediately placed in positions commensurate with her actual experience.  She is currently deployed in an O-4 position and she excels at this position; however, she is not eligible to submit to the Department of the Army board to obtain the rank commensurate with her abilities. 

	c.  When she left the Reserve in 2006 she submitted a request to enter the Individual Ready Reserve (IRR), but her request was not properly processed and she was separated from the military.  When she asked how to fix this error she was told an Inspector General complaint was necessary and that did not seem like the right answer to her since all of the documentation on hand showed that she requested to go into the IRR.  The reason she brings this point up is to highlight that she should never have had a break in service and therefore her TIG should have never been an issue when she came back in as a JAG. 

3.  The applicant provides:

* Memorandum, dated 22 October 2010
* Promotion orders, dated 29 June 2001
* DD Forms 214 (Certificate of Release or Discharge from Active Duty) for the periods ending 7 October 2004 and 10 November 2011
* Federal Recognition Appointment orders, dated 14 February 2011
* Amended orders, dated 20 June 2013

CONSIDERATION OF EVIDENCE:

1.  Having prior enlisted service in the U.S. Army Reserve (USAR), the applicant was appointed as a second lieutenant in the USAR on 19 December 1997 and she was ordered to active duty on 5 January 1998.   

2.  She was promoted to captain effective 1 August 2001.

3.  On 7 October 2004, she was released from active duty after completing 
6 years, 9 months, and 3 days of creditable active service and she was assigned to the USAR Control Group (Reinforcement).

4.  There are no separation orders in the available record, but it appears she was separated from the USAR on 1 November 2006 since her application for Federal Recognition shows her military service ended on 1 November 2006. 

5.  She was awarded a Doctor of Jurisprudence degree on 11 May 2007.  Her transcript indicates she attended the School of Law from Fall 2004 through Spring 2007.  

6.  She provides a letter, dated 22 October 2010, from the Chief, Reserve Component JAG Recruiting Office in Rosslyn, VA which states she was recommended for appointment and Federal Recognition as a captain with 1 year, 10 months, and 12 days TIG. 

7.  On 28 October 2010, she was appointed in the ARNG as a captain in the JAG Corps (JAGC) with a DOR of 16 December 2009.  On 20 June 2013, her DOR was amended to read 16 December 2008.
8.  In the processing of this case, a staff advisory opinion was obtained from the Chief, Personnel Policy Division, National Guard Bureau (NGB) on 20 June 2014.  The advisory official recommended approval of the applicant's request to adjust her DOR to 16 August 2005 for the following reasons:

	a.  In June 2013, her DOR was amended to read 16 December 2008.  In accordance with Army Regulation 135-100 (Appointment of Commissioned Officers and Warrant Officers of the Army) "the date of rank 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 in excess of the amount used to establish the officer's appointment grade."

	b.  According to the applicant's NGB Form 337 (Oath of Office) she was initially appointed into the Texas ARNG on 28 October 2010.  She was appointed in the rank of captain because of her prior service commissioned time.  Her constructive credit was awarded according to the guidance from Tables 3-3 and 3-4 of Army Regulation 135-100.  The breakdown of her constructive credit is as follows:  Her total prior service time is 9 years and 18 days.  She met the minimum qualifying time for appointment to captain which is 7 years.  After you subtract the 7 years from her 9 years of prior service time, the remainder is 
2 years and 18 days.  She is awarded 3 years of education constructive credit for completing her law degree.  She now has a total of 5 years and 18 days of constructive credit.  Her initial appointment date is 28 October 2010.  Once the 
5 years and 18 days of constructive credit is subtracted from her initial appointment date, her new DOR becomes 10 October 2005.
 
	c.  The result of following the instructions in Tables 3-3 and 3-4 of Army Regulation 135-100 is proof that the requested relief is warranted.  Therefore, the recommendation is approval of this request.

	d.  The Federal Recognition office at the NGB concurs with this recommendation.

9.  A copy of the advisory opinion was forwarded to the applicant for comment and possible rebuttal.  On 21 June 2014, she responded by stating that she concurred with the advisory opinion.

10.  Army Regulation 135-100 prescribes policy and procedures for the appointment of commissioned and warrant officers in the ARNG 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.

   d.  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.

11.  Department of Defense Instruction (DODI) 1312.03 (Service Credit for Commissioned Officers) prescribes procedures for granting service credit to persons receiving original appointments as Regular or Reserve commissioned officers.  Entry credit is the sum of the prior commissioned service allowed and the amount of constructive service credit allowed.  A period of time will be counted only once. 

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant completed 6 years, 9 months, and 3 days in an active status during the period 5 January 1998 to 7 October 2004.  

2.  She attended law school from the Fall of 2004 through the Spring of 2007.  She remained in the USAR from 2004 through 2006 while in law school.

3.  The governing regulation states law school education receives 3 years credit.

4.  DODI 1312.03 states entry credit is the sum of the prior commissioned service allowed and the amount of constructive service credit allowed.  A period of time will be counted only once. 

5.  She was appointed as a captain in the JAGC on 28 October 2010 with a DOR of 16 December 2008. 

6.  The breakdown of her constructive credit is as follows:

* her total prior commissioned service is 6 years, 9 months, and 3 days (prior to attending law school)
* she was awarded 3 years of education constructive credit for her law degree
* subtracting 7 years (minimum qualifying time for appointment to captain) from the sum of her prior commissioned service and education constructive credit (9 years, 9 months and 3 days) equals 2 years, 
      9 months, and 3 days
* she is entitled to 2 years, 9 months, and 3 days of constructive credit    

7.  Notwithstanding the NGB Advisory Opinion recommendation, it appears she should have been credited with a total of 2 years, 9 months, and 3 days of constructive credit for her law degree and prior commissioned service.  Subtracting 2 years, 9 months, and 3 days from her date of appointment
(28 October 2010) results in an adjusted DOR of 26 January 2008.  Therefore, it would be appropriate to adjust her DOR for captain to 26 January 2008.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ___X_____  ___X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  adjusting her DOR for captain to 26 January 2008; and

   b.  paying her all back pay and allowances due as a result of the above corrections.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to backdating her captain DOR any further.



      _______ _   __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)                                         AR20130013309



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ABCMR Record of Proceedings (cont)                                         AR20130013309



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