IN THE CASE OF:	

		BOARD DATE:	    9 January 2014

		DOCKET NUMBER:  AR20130015754 


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 18 May 2017. 

2.  The applicant states:

	a.  he wants his MRD, currently and erroneously set for 18 May 2014, to be  adjusted to reflect the three years he spent in law school.  His application for O6 positions were scheduled to be decided by a General Officer Steering Committee on 23 September 2013.  Given his MRD is a mere nine months away, it will be nearly impossible for his application for these, or any other positions, to succeed.  

	b.  he was entering his third year in the Army Reserve Officers' Training Corps (ROTC) Program when he signed the Army Senior Officers Training Corps Student contract on 25 August 1982.  The contract contains a specific provision for an approved delay and his signature on the contract certified he had read and was therefore aware of the educational delay requirement.  He discussed this delay with the Deputy Professor of Military Science (PMS) and the primary officer responsible for all administrative matters in this program.  

	c.  given that 30 years have elapsed since his signing, the Deputy PMS cannot say with absolute certainty that he applied for an educational delay.  The Deputy PMS has, however, stated that he remembers discussing this matter with him.  The Deputy PMS is well aware of his belief that he requested, and was approved for, an educational delay.  This would appear to be self-evident given 

that he was not assigned to a unit immediately after he was commissioned on 
19 May 1984.  

	d.  he believes he applied for an educational delay and temporarily branched in Military Intelligence for paperwork purposes between 25 August 1982 and the date of his graduation and commission on 19 May 1984.  His belief is consistent with the reference to his branch as "Military Intelligence, Reserve Force Duty" on his request for personnel security investigation.

	e.  he graduated after completing 4 years of ROTC and he took his oath of office on 19 May 1984.  In the fall of that year, after taking his oath, he continued to operate under the well-supported belief that he had an approved educational delay, and thus began law school.  In his medical examination, dated 12 May 1987, he indicated he had an educational delay.  His continued belief that his educational delay had been approved was then further corroborated by his promotion to first lieutenant on 22 May 1987.

	f.  he was commissioned into the Judge Advocate General’s (JAG) Corps on 
26 September 1988.  He was later appointed as a Reserve commissioned officer on 6 December 1988 with 4 years, 7 months, and 14 days.  

	g.  in 2013, he was notified that no documentation could be found authorizing an educational delay.

	h.  he is entitled to have his MRD adjusted to reflect the 3 years he attended law school after his commission on 19 May 1984.

3.  The applicant provides:

* ROTC contract
* Sworn statement
* DD Form 1870 (Request for Personnel Security Investigation)
* Oath of office
* Report of medical examination
* Promotion orders
* JAGC commission offer
* Application for active duty
* Appointment as Reserve commissioned officer
* Active duty report
* Email from the U.S. Army Human Resources Command
* Excerpt from Army Regulation 601-25 (Delay in Reporting for and Exemption from Active Duty, Initial Active Duty for Training, and Reserve Forces Duty)
* Law school transcript
* Title 10, U.S. Code, section 14706 (Computation of total years of service) extract

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 26 October 1961.  He graduated from ROTC and was commissioned as a second lieutenant in the U.S. Army Reserve (USAR) on 19 May 1984.  

2.  He pursued his law degree from August 1984 to May 1987.

3.  Item 16 (Other Information) of his Standard Form 88 (Report of Medical Examination), dated 12 May 1987, shows the entry "Educational Delay, 3 years."

4.  On 22 May 1987, he was appointed as a first lieutenant in the USAR.  He was commissioned in the JAG Corps on 26 September 1988.  He served on active duty from 2 January 1989 to 4 August 1994.  

5.  He was promoted to colonel on 21 February 2007. 

6.  His USAR Chronological Statement of Retirement Points, dated 19 December 2013, shows his ROTC and USAR service.  This statement does not show a break in service.

7.  There is no evidence which shows he requested an educational delay.  

8.  He provides a sworn statement, dated 9 August 2013, from the Deputy PMS at the time in question who attests:

* from 1982 to 1985 he was the primary officer responsible for all administrative matters in the Army ROTC program at the University of Virginia
* although he cannot say with absolute certainty that the applicant applied for an educational delay, he remembers discussing the applicant's desire to obtain an educational delay so he could attend law school
* the applicant's belief that he requested and was approved for an educational delay is consistent with him not being assigned to a unit immediately after he was commissioned on 19 May 1984
* he was the person who administered his oath of office on this same date and from everything he remembers about active and Reserve duty during that period of time, the applicant would not have been allowed to be free of any military obligations for more than 3 years without having had an approved educational delay 

9.  In the processing of this case, a staff advisory opinion was obtained from the Chief, Reserve Component Management Personnel, Plans and Training Office, Office of The Judge Advocate General.  The advisory official recommended the applicant's MRD be adjusted to disqualify his years in law school (August 1984 to May 1987).  The opinion states:

* on 25 August 1982, the applicant signed the Army Senior ROTC contract
* on 19 May 1984, he graduated ROTC and commissioned into the USAR as Military Intelligence, Reserve Force Duty
* he believes he was granted a post-graduate delay for law school attendance, although no DA Form 591 (Application for Initial (Educational) Delay from Entry on Active Duty and Supplemental Agreement) granting the delay can be found
* the former Deputy PMS states under oath that the non-assignment of the applicant after commissioning supports the Army's likely approval of an educational delay
* further, a medical examination on 12 May 1987 and promotion to first lieutenant on 22 May 1987 contain notes indicating the applicant believed in good faith that he had been granted an educational delay
* finally, promotion and not reporting to active duty upon completion of ROTC/commissioning would only have been possible if an educational delay was approved
* he did attend law school from August 1984 through May 1987 and graduated with a Juris Doctorate degree
* he was then appointed into the JAGC on 26 September 1988, where he continues to serve
* he has served continuously in the Army since 1984, and as a member of the JAGC since 1987
* even if the DA Form 591 evidencing the granting of the educational delay cannot be found, he either was granted or would have been granted a post-graduate delay to attend law school

10.  A copy of the advisory opinion was forwarded to the applicant for comment and possible rebuttal.  He did not respond.

11.  Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) states, in pertinent part, that colonels will be removed from an active status once they complete 30 years of commissioned service if they were under age 25 at initial appointment.

12.  Title 10, U.S. Code, section 14706 (Computation of total years of service) states 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:  (1) service as a warrant officer; (2) constructive service; or (3) 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.  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.

13.  Army Regulation 140-185 (Training and Retirement Point Credits and Unit Level Strength Accounting Records) states, in pertinent part, that the retirement year, once established, will not change as long as the Soldier has continuous service in an active status in a Reserve and or a Regular component.  It will change when there is a break in active status.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests his MRD be adjusted from 18 May 2014 to 18 May 2017 because he believes he requested an educational delay for the period 1984 to 1987 while he attended law school.    

2.  Evidence shows he attended law school from August 1984 through May 1987.

3.  He provides a sworn statement from the former Deputy PMS at the time in question who states:

   a.  the non-assignment of the applicant after commissioning supports the Army's likely approval of an educational delay.

   b.  promotion and not reporting to active duty upon completion of ROTC/commissioning would only have been possible if an educational delay was approved.

4.  Although there is no evidence which shows he requested and was granted an educational delay for the period 1984 to 1987 while he attended law school, the advisory official states the applicant was either granted or would have been granted a post-graduate delay to attend law school.  Therefore, it would be appropriate to adjust his MRD to 18 May 2017.
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 to 18 May 2017.



      _______ _  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)                                         AR20130015754





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ABCMR Record of Proceedings (cont)                                         AR20130015754



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