DEPARTMENT 
BOARD FOR 

CiF THE NAVY

CORRBCTiON  OF NAVAL 

RECOROB

2 NAVY ANNEX

WASHINGTON 

DC 

20370-5~00

.’ 

HD:hd
Docke$ No: 08394-98
21 September 2000

Chairman, Board for Correction of Naval Records
Secretary of the Navy

.

CA
REVIEW OF NAVAL RECORD

JAGC, USN (

(a)
(1)
(2)
(3)

(4)
(5)

HD;hd Docket No: 08394-98

(PP) memo dtd 29 Feb 

00

13/1MA11366.00 memo

Title 

IO 

U.S,C. 1552

rept 

encl (3)

BCNR 
dtd 7 Feb 00 less 
DASN 
WAG 5800 Ser 
dtd 2 
Subject’s ltr dtd 13 Jul 00
Subject’s naval record

w/encl

Jun 

00 

From:
TO;

Subj 
:

Refi

Encl:

1. Pursuant to reference (a), Subject, hereinafter Petitioner, 
enclosure (1) of the Board’s prior report in this case at enclosure 
naval record be corrected to show that when he retired on 1 February 1996, he retired 
rear admiral (lower half) (pay grade O-7) under title 
captain (pay grade  O-6).

10 U.S.C. 5149(b), rather than as a

fikd written application,

(l), requesting that his

as a

LeBlanc and 

Mr. Kastner, 

General of 

the Navy 

‘Mses. Hardbower and 

Assistant Secretary of the Navy (Personnel Programs) (DASN 

(2), that an opinion on Petitioner’s case be secured from the Judge

2. The Board, consisting of 
initiaUy
reviewed Petitioner’s case on 21 January 2000 and determined that the corrective action
indicated in their report at enclosure (1) should be taken. Upon review of their report, the
Deputy 
memorandum at enclosure 
Advocate 
(PP) further directed that the Board
consider this opinion when making a new recommendation to the Secretary of the Navy.
The 
The Board, with the same members as before, reconsidered Petitioner’s case on
14 September 2000. Pursuant 
Kastner, determined that 
on the available evidence of record. The minority, Ms. Hardbower, recommended that
Petitioner’s 
the 

LeJ3lanc and Mr.
the same corrective action previously recommended should be taken

reauest be denied. Documentary material considered by the Board consisted of

NJAG opinion obtained and Petitioner’s reply are at enclosures (3) and 

enclosures,~naval records, and applicable statutes, regulations 

k~ the Board’s regulations, 

the majority, Ms. 

(PP)) directed, by

(NJAG). The 

DAFN 

(4), respectively.

and policies.

3. The Board, having reviewed all the facts of record pertaining to Petitioner’s
of error and injustice, finds as follows: 

b

allegations

t?TO#

W38

LB36 PTQ  

CDL 

XVd 

‘IT:PT 

ZO/BO/ZT

a. The Board adheres to 

enclosure (1).

all its findings at paragraph 3 of its previous report at

b, Petitioner ’s fitness reports for 1 May 

1987 to 31 

JuIi.1988 (extended to 31 October

X November 1988 to 14 

“Duties Assigned ”), that 

JuIy 1989 (last two documents at enclosure 

1988) and 
Board ’s previous report) both show, in block 28 (
Assistant Judge Advocate General (Operations and Management) 
no express statement in either report to the effect that he served as the Principal Deputy
Assistant Judge Advocate General (PDAJAG) 
1988 shows he performed the duty of 
report); however, the block 88 narrative states 
to become the most junior officer ever to hold his present position.
Contribution 
three other captains.

- Summary ”) of the report ending 31 July 1988 shows 

“On 14 August 1987 petitioner] 

AJAG (O&M) for 

to the
his duty was

15 months (the entire period of the

(O&M). Block 28 of the report ending 31 July

(AJAG (O&M)). There is

Petitioner compared with

(I) 

” Block 52 ( “Mission

‘fleeted up ’

_- 

c. Petitioner did not retire immediately after his assignment to the Office of the Judge
necessary for him to

Theefore, it was 

 

AJAG service to qualify for retirement as a rear admiral

Advocate General (OJAG) ended on 14 July 1989.
have had at 
(lower half) under title 10 

l& 12 months of 

U.S.C. 5149(b).

d. The NJAG opinion at enclosure (3) concludes that Petitioner 

suffer& no injustice

Princi@

“As noted in 

88Ju131, 
”They 

~j?etit.ioner ’s] fitness
the 

w&s retired in pay grade O-6. The opinion states 

[petitio??] served as 
concludti ’that the comparison group shown

. when he 
report for the period of 
87MayOl through 
Deputy Assistant Judge Advocate General.
in this fitness report  “is consistent not with the 
DJAGs in the 06
from August 1987 to his
[Operations and Management] portion of OJAG. ”They state 
detachment in July 1989, Petitioner held the PDAJAG position, and that although the 
AJAG
(06), a rear admiral, was assigned additional duty outside OJAG during the pertinent period,
this officer  “remained serving as 
otherwise. 
Advocate General Instruction 
Manual 
the 1991 version of the SORM, section 108, they quote the following description of the
duties of the PDAJAG (O&M):

served in pay grade O-7
” At various points in their opinion, NJAG cites the 1991 version of Judge

(JAGINST) 5400.1, the Standard Organization and Regulations
casq ended on 14 July  1989. From

(SORM), although the period of 

&TAGS, but with the 

- he could not have 

concern in this 

AJAG 

._

. 

.

AJAG (Operations and

AJAG (Code 06A) assists the 

DAJAGs within the Operations and

The Principal Deputy 
Management), and supervises the 
Management organization; the Principal Deputy 
directly with the JAG or DJAG 
absence of the 
[additional duty] as Commander, Naval Investigative Command, the Principal
Deputy 
Commander, Naval Legal Service Command.

AJAG may communicate
mputy Judge Advocate General]. In the
AJAG (Operations and Management) when assigned ADDU

AJAG (Operations and 

AJAG serves as the 

.Managepent) 

axed Vice

2

OZO@

w3ff

LQSS 

PTQ 

COt 

XYd 

TT:PT 

ZO/PO/ZT

to 

PbAJAG 

AJAG in that 

(O&M) billet concerns

PDAJAG’s prescribed

SORM  included some 

AJAG (06). They stress that the 

off&r’s absence,  and that when the 

NJAG states that the pertinent part of this description of the 
“‘serving’” as 
AJAG (06) was carrying
out duties outside OJAG, the duties of the PDAJAG (O&M) under the SORM included
certain duties previously assigned 
duties under  the 
AJAG (06) responsibilities in the event that 
was assigned outside OJAG. They conclude Petitioner  “did not ‘act’ as AYAG, 
times he was performing duties properly assigned to PDAJAG. 
the successions in effect during the pertinent period provided for the 
bJAG, so 
“PDAJAG did not succeed to the 
conclude that Petitioner ’s service as the 
title 10 
having been filled continuously with an officer in pay grade O-7, Finally, noting that he did
not request pay grade O-7 when he retired, and asserting that he 
Yalleges no factual or legal
’ basis for avoiding the consequences of administrative finality, ” they conclude he  “should not
now be heard to assert 

AJAG’s would have preceded Petitioner for succession. They state
positign, as it was never vacant. ” They

in that at all
” They further emphasize that
AJAG’s to succeed the

PDAJAG did not qualify for flag retirement under

U.S.C. 5149(b), since Petitioner never served as 

an injustice and seek reversal of his own act. ”

AJAG (06) position

AJAG (06) 

AJAG, the 

all the 

officer

.

AJAG 

19883, 

e. Petitioner’s rebuttal at enclosure (4) to the 

NJAG opinion rejects their conclusion
AJAG. He notes
AJAG. He

“As noted in [the report ending 31 July 

Offi% of the Judge Advocate General, the Principal Deputy 

(O+M) when assigned ADDU on a permanent full-time basis outside

[IPDAJAG],” noting this is contrary  to the plain language of the report. He

that during the pertinent period, he was only the PDAJAG and never the 
that his fitness reports ending 31 July 1988 and 14 July 1999 show his duty, as 
takes issue with their statement that 
served as the 
asserts the other captains with whom  he was compared in this report were not 
says the applicable version of JAGINST 5400.1, section 108, reads as follows: “In the
absence of the 
the 
acting 
MAG
provided,” and 
(O&M), who was assigned permanently and full-time outside OJAG. He contends his case is
like that of Captain 
having 
sexed as the 
his allegation that the reason he did not request pay grade O-7 when he retired is that he did
not become aware, until much later, that there might be a valid basis to find he rated flag
retirement.

D--, who was granted retirement in pay grade O-7 on the basis of
AJAG. Concerning the matter of administrative finality, he reiterates

AJAG (Code 
” He maintains nothing was 
.of the 

AJAG (0 +M) unless otherwise provided. 

06A) is the
“otherwise
“nomin@” 

20 months in the absence 

thar he served as 

AJAG for 

me]

DAJAG’s. He

MkTORlTY CONCLUSION:

Upon review and consideration of all the evidence of record, notwithstanding the 
NJAG
opinion, and in ‘ concurrence with Petitioner ’s rebuttal, the majority still finds his request
should be approved. In this regard, they find both the 1991 version of section 108 of the
JAG 
effectively split the 
Petitioner’s fitness reports for the pertinent period show his duty as 
“Acting” 

NJAG and the applicable version quoted in Petitioner ’s 

AJAG, They are satisfied that Petitioner was an 

(O&M) position into two 

AJAG positions. Further, they note that

AJAG, for purposes of retirement

SORM quoted by 

rather than

AJAG, 

rebuttal

AJAG 

-

3

TZO 

a

No8

tQ86 PTQ  

COL 

XVd 

TT:PT 

ZO/9O/ZT

rear admiral (lower half) under title 10 

as a 
view of the above, the majority recommends the following 

U.S.C. 

5149(h), for the requisite 12 months. In

corrective action:

MAJORITY RECOMMENDATION:

a. That Petitioner ’s naval record be corrected to show that when he retired on

1996, he retired in 

the grade of rear admiral (lower half) (pay grade O-7) under

5149(b),  rather than  captain (pay grade O-6).

1 February 
title 10 

U.S.C. 

6. That any material or entries inconsistent with or relating to the majority
recommendation be corrected, removed or completely expunged from Petitioner
that no such entries or material be added to the record in the future.

’s
’s record and

.

c. That a copy of this Report of Proceedings be filed at an appropriate location in
Petitioner ’s naval record, and that another copy of this report be returned to this Board,
together 
confidential file maintained for such purpose.

with any material directed to be removed from Petitioner

’s record, for retention in a

MINORITY CONCLUSION:

PDAJAG ’s duties cites the 1991 version of the JAG 

recognizes that their
,but she
onIy the  “acting ” 
AJAG ’s absence. She acknowledges that Petitioner performed the duties of the 

The minority substantially concurs with the NJAG opinion. She 
treatment of the 
observes that the applicable version indicated the 
the 
(O&M)) while the 
notes tbat 
the duties of that position.

AJAG in
AJAG
(O&M) was assigned outside OJAG. However, she particularly

AJAG (O&M.) position itself was never vacant while Petitioner was performing

In view of the foregoing, the minority recommends as follows:

PbA.TAG*was 

SORM; 

AJAG 

the 

MINORITY RECOMMENDATION:

a. That Petitioner ’s application be denied.

It is certified that a quorum was present at the Board
4.
the foregoing is a true and complete record of the Board
matter.

deliberations, and that
’s review 
tid
in 
’s proceedings
the above entitled

_

ROBERT b. 
Recorde
r

ZSALMAN

JONATHAN S. 
* Acting Recorder

RUSKJN

4

ZZOrpJ

W38

LQSS PTQ  

COL 

XVd 

TT:PT 

ZO/PO/ZT

5. The foregoing report of the Board is submitted for your review and 

acti-

I

MA JORITY 

REPORT

Reviewed and approved:

.

MINORITY  REPORT

Reviewed and approved:

.. 

.

5

czo 

rpl

xN39

LS86 

DTQ 

COL 

XVtI 

TT:PT 

ZO/BO/ZT

‘-_

_, 

* 

b

._8 

;

I

:

j

DEPARTMENT 

O

F THE NAV

Y

OFFICE OF THE JUDGE ADVOCATE GENERAL

WASHINGTON NAVY YARD

li22 PATTERSON AVENUE SE SUITE 3000

WASHINGTON DC  

20374-6066

11( 

AEPLI REFER TO

13/1MA11366.00

1
1 580
0
i Ser  

2 

Yune 2000

MEMORANDUM FOR EXECUTIVE DIRECTOR,

NAVAL RECORDS

BOARD FOR CORRECTION  

OF

Subj:

REQUEST FOR COMMENTS AND RECOMME
CAPT

'Ref:

(a) BCNR 

ltr 

HD:ks

. 

-

Encl:

(1) Legal Analysis

OF

of 6 Mar 00

Reference (a) requested the opinion of  
1.
General regarding the subject case pending  
Correction of Naval Records.

th$ Judge Advocate
befjore  the Board for

!

2.
suffered 

Issue: Whether C
an'injustic

Short Answer: No.

3.
appropriate grade.
10 

U.S,C. 

,

ISA&, U.S. Navy (Ret),
in 

dhe grade of O-6.

was retired in the
&et 

ihe requirements of

5 5149(b) for retirement in the grade O-7.

Enclosure (1) contains a legal analysis  

4.
case.
Assistant Judge Advocate General

My point of contact is Command

(Adrninistratlve

ok the issues in this

&f&e Advocate General

900 

@

tlNC.38

L986 

PTQ 

CfbL  

XVd 

8F;fT 

-
ZO/PO/ZT

-

h

c.
. 

,’

,-

--\
,:

: 

,.

Legal Analysis

Issue:

Whether an officer who served as Principal Deputy

1.
Assistant Judge Advocate General (PDAJAG) from August 1987 until
July 1989, subsequently requesting and receiving retirement in the
grade of O-6, suffered an injustice by retiring in that grade
rather than in the grade of C-7.

Short Answer. No.

The officer did not meet the requirements

§ 5149(b) for retirement in the grade of O-7.

2.
of 10 U.S.C. 
Moreover, the officer was properly retired, at his own request, in
the grade of O-6, an administratively final act.
Under these
circumstances, the officer suffered no injustice and should be
afforded no relief.

3.

Backqround

a,

Capta
Deputy Assist
from July 1964 until 14 August 1987,
years.
A s noted in his fitness report for the period of  
through 
88Ju131,
Assistant Judge
until his detachment on 14 July 1989, a period of   23 months.

C,, U.S. Navy, served as
ral (Management and Plans)
a 

served as the Principal Deputy
. He remained in this position

period.of more than three
87MayOl

After 

leaving,the Office of the Judge Advocate General

b.
(OJAG),
Service
1992), then as Staff Judge
Advocate, Commander Naval Base San Francisco from 1992 until his
retirement in 1996.

served as Commanding Officer,  
isco (1989  

- 

Naval Legal

asking that his record be corrected to reflect retirement in the
grade of O-7, pursuant to 10 U.S.C.  
argues that he "performed the 'assigned duties"' of th
(AJAG 
Judge Advocate General (Operations and Management)
 
from 1 May 1987 until 14 July 1989.
for,this
His support  
assertion consists of two fitness reports that list him as
(06), the fact that his reporting senior

AJAG
was the Judge Advocate

§ 5149(b).

Captai

(06))

that he supervised subordinate Deputy Assistant Judge

 

. General,

t

Advocates General, and that he
the other serving  
cailure to request retirement
believe that he met the criteria for such retirement.
after he learned of the retirement in that  

AJAGs.

Fina

ranked against
explains his
duse he did not
ft was only

grade.of other,

QOOQ

IIN

LS86 

P’CQ 

COL 

XVd 

6O:P1: 

IO/PO/IT

Enclosure 

t 

1 )

similarly situated officers that he submitted the petition to the
Board for Correction of Naval Records (BCNR).

4.

Statutory Basis and Interpretation

. The statute governing the Deputy Judge Advocate General

AJAG positions is 10 U.S.C.

§ 5149(b)

"AJAG statute"].

Section 5149(b), as amended,

posi:ion  and the two 
[hereinafter the 
provides:

While so

An officer who is  

"An officer of the Judge Advocate General's Corps who has
the qualifications prescribed for the Judge Advocate
General in section 5148(b) of this title may   be detailed
as Assistant Judge Advocate General of the Navy.
serving, a judge advocate who holds a grade lower than
rear admiral (lower half) shall hold the grade of rear
admiral (lower half), if he is appointed to that grade by
the President, by and with the advice and consent of the
Senate.
Assistant Judge Advocate General of the Navy under this
subsection or who, aftef serving   at least twelve months  
Assistant Judge Advocate General of the. Navy, is retired
after completion of that service while serving in a lower
rank or grade, may, in  the discretion of the President, be
retired 
half)].
half)], he is entitled to the retired pay of that grade,
unless entitled to higher pay under another provision of
law."

If he is retired as a [rear admiral (lower

with  the rank and gxade of [rear admiral

retired while  

sertring

(Zowex

 as

 

as

(Emphasis added).
guidance for a Marine Corps  

AJAG position.

Subsection (c) provides substantially identical

b.

The legislative history behind the  

AJAG statute reveals

The House proposed to create two  

that it was a product of compromise between the House and the
Senatea
and one Marine Corps,
officers in the grade of  
concerns about the availability of enough flag officer "numbers"
AJAG position,
to fill two positions,

both of which were required to be filled by

The Senate, reacting to Navy

wished to create a single 

AJAG positions, one Navy

O-7.2

’ 
The compromise  took  place in the context of paeaage 
1967, Pub. 
L. 90-179, 
specifically the mandate of additional  
limit8 on flag numbers,
support in Congress, 
ADVOCATE 

"Stennis ceiling."
support within the Navy was mixed.

the so-called 

JAG flag 

81 Stat. 

545.

GENEW. ‘~ C ORPS , 652 
110, 90th 

H.R. Rep. NO. 

685 (1997).

- 
Gong.,  1st 

a 

1967,”  Act of Dec. 
0,
The compromise also involved some concerns   of  Navy leadership,
SASC

posirions  to be counted against the 

of the "JAG Corps Act of 

unorfiCi&  

Though 
see J. M.  

the JAG statute enjoyed broad
JKmE

SEXGEL,  OR IGINS OF  

XWX  

THE 

Sass.  6-7 

(1967).

2

P

LOOpJ

tIN3ff

LIj86 

PTQ 

COL  

XVd 

6O:FT 

ZO/tO/ZT' 

--

.

I.

‘-2

*_

filled by either a Navy or Marine  
compromise amendment that created the two presen
one Navy and one' Marine, whose incumbents could serve as 0-7s
and/or could retire in that grade.'
discussion of the underlying purpose of the  
provide incentive and reward for the most senior and capable judge
advocates to continue serving in challenging billets of flag-level

The record is replete with

AJAG statute 

0-7.j

- to

Sen

’ responsibility.

. .

C.

Navy practice in filling the  

AJAG positions and in use of

O-6.5

From 1981 until 1992, the Navy used the section

(b) position" to support a third JAGC flag officer position on

the associated retirement provisions has varied over the years.
Initially, the Navy filled the positions with officers serving in
the grade of  
5149 
active duty, sharing a "flag number" with the line.
officers were assigned various duties within the Department of
Defense or the Navy, while officers.serving in the grade of O-6
"Assistant Judge Advocate
served in the positions denominated
General."'
discretionary retirement provision of the statute in 1987, there
have been eleven officers so  
retired,g some of whom served as  
during a period in which either other officers served as 0-7s

f,irst officer was retired as an O-7 under the

Since the 

These

AJAG

I

ls'c 

Sess. 

(19671, reprinted in 1967 

"

U.S. Code 

Gong. 

h 

Admin. News, 

p.

‘(196-I).

Ret_ 32764 (1967).

' S. Rep. No. 748, 90th Cong., 
2113, 2116 
’ 113 Cong. 
' Problems with the language
serv
for the period of their
reti
officers later sued for 
retir
discretion refusing to
1983).
' A Marine O-6 filled the 

6 5149(c) position.

El- 
amS
-
(h) 

wed claims by two such officers for O-7 

pay

4 (Ct. 
d 
6.. 723 

SECRAV's 

Cl. 1974). 

The
exercPso of

F.2d 977 

(Fed. 

Cir.

-

(1968 
ing"
a5

02 

01 

- general law; 02 
Currently, there are two 

Deputy JAG or JAG.
a There have been as many as four positions titled 
- military justice;  
General: 
management.
and 
- military justice.
than 20 years.
Judge Advocates General  
ia also an o-6 position 
or 06.
to the Deputy 
Assistant Judge Advocate position  

This position, denominated "Director of  

JAG and JAG-

supervieed  

AJ'AG 

th+t 

Both positions are filled by 0-6s who supervise other 0-6 Or 

The 02 position is tilled by a Marine 

(DAJAGs) and 
repo.rt  directly to the Deputy 
which replaced what had formerly been the 

- civil 

AJAG with the Office Of the Judge 
03 

- operations and
Civil 
- 
positione,  consistent with the statute: 01 
oJ?l!lcer,  and has been for more
Asaietant
O-5 Deputy 
OJAG there
Within 

law: and 

Advocate

law,

06 

At various times, there  has also been a

Operations~" supervises 

DAJAGs and reported to SAG or DJAG.

JAG and 
AJAG for 

JAG.
operations and Management
DAJAGs  and reports directly

"PDAJAGO  or Principal Deputy
See infra.

than a decade.

8OOl7j

tIN3ff

LS86  

PTQ  COL 

XVd  

BO:PT  

ZO/PO/ZT

3

ir

under the 
also received an 0-7  

retiremgnt.

AJAG statute, or other officers serving as O-6  

AJAGS

d.

AJAG position created by 10 U.S.C.  

The strictest interpretation of the  

AJAG statute would
seem to require that an officer have served 12 months or more in
the one 
§ 5149(b), or retire
while serving in that position, to be eligible for O-7
retirement-l'
Navy officers retired as O-7s'since 1987,
to have met both the explicit and the implicit requirements of the
statute_l'
Deputy Assistant Judge Advocate General has been retired in  
grade O-7.

As discussed below, no officer serving as Principal

Practice has enlarged this strict reading.

Of the
only three could be said

p&y

A recent petition at BCNR involved

5.
issu
his records be corrected to show his retirement in the grade of
rear admiral_
similar, if not identical, a brief discussion of our last opinion
may be valuable.

As many of the issues in these cases are very

t) requested

this case.

Capta

a.

only 

11 mont
ved 
uring the period

Capta
Law); this se
active duty as an O-7  
AJAG
as "Principal Deputy Assis
position nominally subordinate to the  
structure of 
active duty as an O-7  
for retirement as an O-7 was that his service as  
functionally equivalent  
required resolution in Capt
be found meritorious:
§ 5149(b) at a given time; and,
as a Navy 
second, that service as PDAJAG was equivalent to service as  

During this period, RADM
AJAG.
The basis for Cap

AJAG level within the

AJAG.
vor if his request were to
han one officer may serve

s subsequent service was
ate General (PDAJAG)," a

PDAJAG was
Thus, two issues

AJAG under 10 U.S.C.

to service as an  

0JAG_12

first,

AJAG.

on
m

Moreover, 

AJAG position vas the 

5149(b) position.
practice  in 

Gf the statutory position in  

Attempts to "designate" one of the 

supr8, indicates that service in either the 

The use of a board selection process, see note 11, infra, should allow 

grear: difficulties in application of the retirement provision has been determining
allowing  the retirements of the officers listed 
qualifies

I' One of the 
which 
have been inconsistent.
note 9, 
under the statute.
identification 
" 
a period in 
selection process was employed.
" Capt
s, 
detached him from duty in 
to duty as "Deputy Assistant Judge Advocate  General (Operations and Management)" and additional 
as "Vice Commander, Naval Legal Service Command."

Jul 90 as "Assistant Judge Advocate General (General Law)" and ordered him
duty

.
future- 
months in a 
as an O-7 
nd 

n, during
rly
board
*
JUL 

AJAG billets
in

01/03  position or the 

RADM Albrech
wh

dee
AJAG
succe~so

2010 of 25 Jul 90 

UrASMrNGTON DC 

BUPERS Order 

06 position 

(CPMAVPEAS  

2522022  

901,

for Clear

§ 

the 

hia 

SOOQ

IiN

LS86  

PTQ  

COL  XVJ  

6O:PT  

ZO/PO/ZT

4

F

(1) We have previously opined that, while the intent and

AJAG statute make it clear that only two

the language of the  
one Marine and one Navy, the
positions were created by Congress,
incentive purpose of the statute encourages a broad construction."
Previous Secretaries have recognized the simultaneous assignment
of more that one officer as  
retirement provision.
objection, though relevant,

was not deemed controlling."

Given Navy practice since  

AJAG for purposes of the  

1987,14 this

AJAG

’

. 

.

(2) The more difficult question was whether Capta

AJAG positions.

AJAG statute as 0-7s served for

Practice did not support such an extension: all of

service as PDAJAG could be construed as qualifying service un
the statute.
the officers retired under the  
more than 12 months in positions definitely and traditionally
Moreover, the language of the
identified as 
statute very specifically states that such retirement may be
granted to an officer if he is retired
service" and "after serving at least twelve months as  Assistant
Judge Advocate General 
specifically named  
legislative history for extending benefits of the  
persons arguably performing the duties of an  
position_
authority to make service as PDAJAG equivalent to  
AJAG.17
service did not qualify for retirement as a rear admiral under the
authority of  

Accordingly, we opined in that case that Capt

Given the plain language of  

pesearch  reveals no basis in

th?. statute, there was no

"after completion of that

AJAG without the

position.16

service.as

10 U.S.C. 

5 5149(b).

of the Navy" 

AJAG statute to

and speaks of "detail" to that

b.

Though the lack of sufficient qualifying service as an

AJAG disposed of the question,
doctrine of administrative finality was a factor both in that case
and in that of Captain
adminis
bars reopening  
.

discretionary matters that have

it should briefly be noted that the

Administrative finality generally

Dee  97; see also JAG ESM (undated) in the

ition,  multiple 

AJAGs becomes a 

InorB

(emphasis added)_ The "while serving" retirement language is 

similarly

OP service "as Assistant Judge Advocate General of the Wavy."
plausible argument could be made if the statute listed the 

reaeon, the fact that Captain Geer served as  Vice 
generally  associated with the 
is 

AJAG position, 

06 

comnder, Naval Legal Service  
not germane.

Moreover,

iseue.

u.S.C. 

I 5149(b) 

O and 3, supra.

conte
See note 50, inf

I' See notes 
” Note, however, tnat in the 
troubling 
I5 10 
premised 
v A more 
that 
duty 
qualified service in any 
eo widely among the 
principled basis for determining  
0-7 retirement.

The 

lLTAG position for 

O-7  retirement, and since the specific 
poeitiona and over time, mere performance of any specific duty 
AJAG position.

months' service in an 

that some kind of 

only principled basis is

nquasI-AJAG"

  12 

sertrice  would entitle an officer to

AJAG's duties: it does not.

For

Commq&  a

since practice   ha s

AJAG duties differ

eannof be a

oro!pJ

w3ff

L986  

PTQ  

COL  XVJ  

6O:PT 

IO/PO/IT

- l  .

fina1ized.l'

Only in limited circumstances may such matters

been 
be 

reopened.lg

In the case of Capt

.ere were  no
tive finality bar.

He alleges no factual or legal basis for avoiding the

Similarly, Capta
O-6.
consequences of administrative finality.
now be heard to assert an injustice and seek reversal of his own
act.20

Thus, he too should not

ceived retirement as an O-6.
quested and received retirement as an

6.
that

urther analysis of the specific facts of this petition

_ Notwithstanding the conclusion
should bar relief for Captain

and applicable law is warranted.

a.

AJAG/PDAJAG  positions.

been as many as four  

AJAG positions_

As noted previously, there have
At the inception of the  

AJAG

- 

Yustice 

AJAG (Military  

§ 5149(b) and (c) and legislative history.

statute after 1967, there were only two: AYAG (Civil Law  
and 
of 10 U.S.C.  
Currently, there are again only two  
ones of 
and Management was created in the late  
senior captain to assist in the daily management of OJAG and Naval
Legal Service Command.

This position title was transferred to

AJAG positions, the original

"02"), consistent with the provisions

AJAG position for Operations

'7$s to provide for a

AJAG (01) and 

AJAG (02).

"01")

The 

- 

1982 when another officer was brought into OJAG to

G (01) position_

The title of  

AJAG (06) was

thereafter generally  
usually worked outside   of 
Commander, Naval Security and Investigative  
of the 
"Principal Deputy Assistant Judge Advocate General" or PDAJAG, and

held'by the third JAG flag officer, who
- either assigned to DOD or as

AS a result
a position was created called

AJAG serving outside of OJAG,

Command.z1

OJAG 

I9 If the action 
probative val
miscalculation, or if newly discovered evidence of sufficient 
doubt about a material prior finding is discovered, the action may be raope
v. united States, 132 Ct. 

is the result of mistake of law, manifest error, fraud, or

Cl- 122 (1955).

nited  States, 19 ct. Cl. 

528

case, it should be clear,
ses.
(b).
argument could be made that either SECNAV 

issue  raised
was exercise of
remests by the officers involved for retirement

In those latter cases,
after 

is not the same finality 

the action at issue 

timciy 

with sufficient facts, or that circumstances had changed so radically as to warrant 
reexamination of 
r
to SECNAV to correct 
bar of finality when 
*
action 
ia that of Capt
where  the action 
cm@

Finally, the 
"remove an injustice," in 

otherwise be 
If.
from the free 

decision of the person involved.

aCNR process and 10 

U.S.C.
Iq 

the decision.

the result.

this  

It is axiomatic that equitable relief should not lie

diei not exercise that discretion
adminiStratiVe
§ 1552 give very broad power
l*&ft the

come sense providing a means to 

case,  however, the final

21 see note 7,

supra, for officers who held the 

06 

posirion  as while-so-serving O-79.

6

rr

TTOQ

IIN

LS86  

PI9  COL   XV6 

60:PT 

ZO/PO/ZT

- 

.-

_ 

-

.. w

-i

1

_-__

: 

‘\ 

\

?

06A."

A captain who supervised some divisions within
coded as 
OJAG and was assigned additional duty as Vice Commander, Naval
Legal Service Command, filled this  
position of  

PDAYAG was left  

position.23

unfilled.24

After 1992, the

b.

petition
Judge Advocate General
below, the evidence demonstrates that Capt
during that time period as PDAJAG, not as

(Operations and Management)."

_ Capta
ssigned

tates in his
ssistan
t
As discussed

ved

(1) Fitness Report Evidence

"AJAG 

87May01 through 

(a) The sole documentary evidence that indicates that
"AJAG" consists of two fitness reports.

Captain Bohaboy served as
The first, covering the period  
block 28, Duties Assigned:
GENERAL (OPERATIONS   AND MANAGEMENT)  
that Capta
the listed billet.
with the block 88, Comments  
Captain Bohaboy 1 of 4 officers in his comparison group and
describes his position as  
billets."
General, RADM Campbell_

The report is signed by the then-Judge Advocate

This information is internally inconsistent
The fitness report ranks

erved all 15 months of the report period in

- ASSISTANT JUDGE ADVOCATE

JAG:$orps' three flag

"15" indicates

"one of the 

section.26

- 15."

88J~131,~~ lists in

The 

(b) The second fitn

89Ju114,  the date Capta

This report, signed by
T7
Sturnbaugh, also listed Cap

88NovOl through  
OJAG . 
RADM 
but 
cornme
against any 
responsibilities" discharged by Capta

- as this was a "detaching

oth&r officer.

The 

duties. as 

period of
etached from
te General,
"AJAG,"
 
discusses "flag
in his position.

not rank

s 

him

’

" See JAGINST 5400.1 of 1991, section 
inter 

06A position description.

alfa,  the 

lO'il(b).

Sea 

The 1391 
OJAG 131 memorandum of 5 Mar 

revision was done to update and change,

31.

" similarly, In 1989,

OJAG divisions reporting to 

the position of 
AJAG 

AJAG (General Law 
The 

(Civil Law).

-

"03") was created to supervise several of
01/03 split was  undone in  1992 when then-CAPT

Since then, both positions have been held by a single 
the JAG 

(JAGIN& 5400.1) after 

1932, but 

S0PM 

was removed 

AJAG.

in 

Sometime in a

noe contained in the 

,‘_

.,. 

..".

cusrent edition.
dates of service 
fil
rthy that the 
served 

cla_imed by
ret line 
In 

th

In the claimed position after 14 August 

_$9B7..

the period
e fitness

"both positions.
remained 
24 The position 
later revision.
It is 
" This appears to be the
covered by the fitness re
that C
report makes clear 
; 
ID See  

note 25,

 
supra.

i

" The gap between the two fitness reports is explained by the fact t
unexpactadly and erfended all his prior 

fitness reports by 

approximat

7

etached

F

ZTOpJ

mI3ff

L'S86 

PTQ 

COL 

XVd 

0T:P'I 

IO/PO/IT

._
:’i

(c) Both fitness reports largely describe the duties
performed by "Vice Commander, Naval Legal Service Command," that
is, the officer who effectively managed the daily affairs of the
Echelon II command, which at that time included 21 Naval Legal
Service Offices  
descr
Capta
recon
OJAG during the periods in question.
report (May 87  
entitled 
and  02  (Military Justice).
of O-7 as Deputy Assistant
Affairs, held the 

worldwide.2B
PDAJAG."
compared in the first fitness report cannot be
e actual numbers of  
positi.ons assigned to

06 (Operations and Management),
who served in the grade
Defense for Legislative
A Marine officer, Colonel

This is consistent with the position
The rating group against which

AJAG 
During the period of this

88), there were only three positions

"AJAG:" 01 (Civil Law),

AJAG (06) position.

- July 

. 

.

) position.
eld the 

A Navy officer in the grade of.

AJAG (01) position.

As Captain

Bohaboy could not properly have been rated against an O-7 or a
Marine, the comparison group of officers in blocks 65 and 66 of
the fitness report could not have been the  
AJAGs, despite the
position 
In fact, the numbers are consistent with the DAJAGs within the
Operations and Management or  

title_30 At most, he could have been rated "one of two."

"06" branch of  

0JAG.31

(d) Despite the comments and  

ghe position title in the

the balance of the evidence in the reports seems
All the
AJAG positions were filled with other officers, and the

fitness reports,
to indicate that Captain Bohaboy was PDAJAG, not  
existing 
duties described by the reports are those of the PDAJAG,
predominantly those of Vice Commander, Naval Legal Service
Command, responsibilities assigned to PDAJAG (06A) in the absence
of the 
first fitness report is consistent not with the  
the DAJAGs in the 06 portion of OJAG.

Finally, the comparison group noted in the

AJAGs, but with

AJAG (06).

AJAG.

(2)  Objective Evidence.

Objective evidence aside from the

as the PDAJAG.

fitness reports confirms that Captai
From 

Dee 84 until Aug 87,

the PDAJAG position was held by Captain

succeeding a prior organization called

See 

(NLSC) was created in 1980,

" Naval Legal Service Command 
OPNAVNOTE 5450 of 4 Jan 
"Naval Legal Service."
command,  commanded by the JAG, reporting to VCNO. Id.
NLSC, making the Deputy Judge Advocate General Commander, NLSC.
" See 
" That he was not rated against officers 
fitness  report comments: "In rating him number one of four of the finest 
code
cover

80. NLSC was 
Feb 

note 22, 

On 2 

supra.

establishe
89,
Secreta

first fitness report as 

“AJAG. ”

.serving  in a higher grade or Marines is confirmed 
0-6'5 in the JAG 

by the
Corps....*
en

CTOpJ

IIN38

LS86  

PTQ  COL  

XVd 

0T:PT 

IO/PO/IT

. 

._’

.-

Eoff.32

From Aug  87  until his detachment in July 89, Captain

dfficers within OJAG during the period list Captain

All records extant donoerning the

Id this position.
of 
osition as the  

PDAJAG.33

(3)  Conclusion _

Captain
AJAG, despite the ti

position of  
reports.
was assigned as the Principal Deputy Assistant Judge Advocate
General, Code 06A.

In fact, during the period in question; Capta

as not assigned the
n 

his two fitness

C.

via

clear th
the only 
performed duties somehow associated with or integral to the
position of  
therefore becomes: Did Captai
AJAG and would such service qualify an officer for retirement
under the provisions of 10 U.S.C.  

AJAG contemplated in the 

statute.34

5149(b)?3s

The legal question
erform the "duties" of the

_ As the evidence is
o the 
AJAG position,
raise is that, as PDAJAG, he

§ 

(1) Duties of the  

AJAG.

The statutory provision creating

It does, however, mandate 

the AYAG positions is silent on the duties of the position
itself_36
duties of the JAG, in the absence or disability of that officer
provided the Deputy  
duties.37

Aside from this successor function, the assignment of

JAG is also absent or unable to perform JAG's

AJAG will perform the

that-&he 

Ott 

See JAG Directory entries  for  1 

"8710," consistent with a detachment date in August).

" 
date of 
hand,. C
request
reason that service as PDAJAG did not qualify for retirement under the 
Counsel to Chief of Naval Personnel  
" These sources include the "Organizational Guides"

1811  Pers-14 dated 20 

85, 1 

inemorandum

for 

 

requested retirement in pay grade O-7 as a result of his service as PDAJAG.
ifically denied 

His
recommendations from the chain of command, for the

SECNAV.  upon 

py 

Wov 96, and 1 May 37 (indicating a voluntary retirement
Of specific interest to the issue at

AJAG statute.

Dee 

86, paragraph 

See Legal
3d.

ate General's Corps Directory,"
Ott 
r 
signment  to 

1 
PDAJAG.

33, 
06A. 

89, 1 

88, 1 

Apr 

Ott 

editions published in 1 
89, 

end 1 Apr 90.

OJAG published in 

37 and May 89, the
87. 1
All entries are consistent with 

Ott 85, 1 Nov 36, 1 May 

Nov 

CnPT

This distinction is important   when 

AJAG: all the 

AJAG 

poaitiona were filled and

ConsiUering  

past practice in

assume
Ition.
tnees 
to a small degree supervision of the 06 divisions.
tually supervised the division directors.

duties as PDAJAG or 
06~ were
s not necessarily the case, as
with the duties 

See note 47,

or Vice

r

It is

AJAG service.

duties  assigned.

" Note that the issue is not one of "acting" as the 
performing 
crediting officers with 
x5 For purposes of this
similar Co those assign
most of the commentary
Commander, Naval Legal
questionable to what 
ex
infra, and notes 30 and
" See 10 
‘% 10 U.S.C. 
they succeed to  JAG’s duties in the absence of JAG and DJAG.
succesaios to the duties of the JAG several times since 
AJAG (01) and 
(O6), then 
ltr of 
(01) and 

DAJAGa in order of seniority); SECNAV 

AJAG (02) in order of seniority,

(02) in order of seniority,

3 5149(b) and 

theze are two 

§ 5149(e).

U.S.C_ 

AJAG 

then 

(c).

As 

AJAG positions, SECNAV must prescribe the order in 

SECNAV  has designated an order of

then after the two statutory 
(DJAG. then 

Nov 

2 

Id.
SECNAv ltr of 20 Aug 
88 

1380:

DAJAGs in order of seniority); SECNAV 

AJAG positions, 
AJAG (06). then 
ltr of 

;hich
(DJAG,  then
AJAG
AJAG
AUg
17 

81 

PTOQ

HIND8

L886 

PTQ EOL XV6  

0T:PT 

ZO/PO/ZT

‘\

!

. . . . .

duties is within the discretion of the Judge Advocate General and,
ultimately, the Secretary of the  
By instruction, the JAG
Standard Organization and
for all OJAG positions,
the duties of the 

Manual or
"SORM" list duties
the period in question lists

AJAG as

Navy.3e

AJAG 

(Operations,and  Management).. has primary

"The 
responsibility over operations and management, and also
serves as Vice Commander, Naval Legal Service Command
(VCNLSC)."3g

These duties are obviously quite general.
found in the  

SORM:40

Additional guidance is

AJAGs are assigned functional areas of responsibility
When neither JAG nor the DJAG is able

"The 
as described below.
to perform assigned duties,
duties in the order directed by JAG.
addition to the duties assigned by the JAG or DJAG,
supervises the Deputy Assistant Judge Advocates General
(DAJAGs) and their staffs assigned within their areas of
responsibility_
preparing and signing fitness  
DAJAGs."~~

AJAG supervisory authority includes

AJAGs will carry out the  

repgrts for the assigned

AJAG, in

Each 

JAG's

From this information, and the succession memoranda, it becomes
clear that the SORM-assigned duties of  
operations of NLSC, to supervise the DAJAGs assigned to the
operations and management divisions,
reporting senior for fitness reports, and to succeed to the duties
of JAG when JAG and DJAG are not present."
During the period in
question,
Specifically, 

ional duty outside OJAG.
was assigned as Commander,

including acting as their

AJAG (06) wa
AJAG (06

(06) are to manage the

AJAG 

AJAG 

89 (DJAG, then 
DAJAGs in order of seniority), and SECNAV 
of Operations  
of the succession memoranda mention the PDAJAG position.

then'DAJAGs and Special Assistants to 

then to one of the three 

ltr dated 

(06),

(06),

AJAGs (01, 03, 
13 Feb 

98 (DJAG. then 
JAG in an order 

02) in order of seniority, 
AJAG 
to be prescribed].

than
(011, then Director
None

” . 

SECNAV has not set forth any duties for the  
recognized the importance of the position having a discretionary 
In a IO 
assignments would be that used for flag nominations.

AJAG positions.

Ott 

35 memorandum, Secretary Lehman directed that the procedure and format for future 

Notably, however,
flag retirement

108a.
01/03 and 

" JAGINST SdOO.l, section 
" The specific 
duties  for 
respectively.
As they are not directly germane to this 
" JAGINST 5400.1, section 
" after 2 
(01) 

83, 
(02) regardless of seniority.

(06) followed directly the  

02 are lioted in 

Nov 
AJAG 

See note 

AJAG 

and 

104.

EhO 

SORM at sections 
107a.
discussion, they are not quoted 

1OSa and 

here,

DRAG for succession purposes, coming before  

31.  

supra.

AJAG

AJAG

XN38

LSSS  

PTQ  

OOL  

XVd 

0T:PT 

ZO/PO/ZT

Naval Security and Investigative Command (Commander,  
Thus, the duties of the  
AJAG (06) were
superceding some of those listed in th
important point: the officer serving a
AJAG 

- he could not have served in pay grade O-7  

NISCOM).d3

SECNAV,

This is an

ned serving as
otherwise.45

(2)  PDAJAG's duties. Again, reference to the JAG SORM

indicates the "standard"

duties of the 06A position:

AJAG (Code 06A) assists the  

"The Principal Deputy  
(Operations and Management), and supervises the  
within the Operations and Management organization; the
Principal Deputy  
JAG or DJAG.
Management) when assigned ADDU as Commander, Naval
Investigative Command, the Principal 
the 
Naval Legal Service  

AJAG (Operations and Management) and Vice Commander,

AJAG may communicate directly with the

In the absence of the 

AJAG
DAJAGs

Command."46

AJAG (Operations and

Deputy.AJAG  serves as

AJAG 

.of the 

Aside from the general scope of the duties listed above, which
largely parallel those  
this billet description concerns PDAJAG "serving" as  
officer's absence.
carrying out duties assigned as Commander;
under the SORM included certain duties previously assigned to
(06).
under the SORM   included 
event that officer was  

some 
assigned.as Commander, NISCOM.

AJAG (06) responsibilities in the

This too is an important point:' PDAJAG's prescribed duties

NISCOM, PDAJAG's duties
AJAG

(06), the pertinent part of

In other words,

AJAG (06) was

AJAG in that

when.'bhe 

 

(3) Conclusion.

Captai
perfor

Specifically, during the additional duty of the

that at all times he was  
PDAJAG.
Commander, NISCOM, PDAJAG's duties included Vice Commander, Naval
and some responsibilities for supervision
Legal Service Command,
of the 
These
duties did not include writing fitness reports on the assigned
DAYAGs; in fact, as discussed above, Capta

DAJAGs in the Operations and Management divisions.

 

own fitness

AJAG as

d  not 
properly assigned to

"act" as  

AJAG, in

Deputy  ASD for
Direc

See JAG 

slative  Affairs until. 
dated 1 

Ott 

September 1987, when he became

87. He assumed these duties 

about  one month

AaAG 

" Unquestionably SECNAV has this authority.
ti The 
5149(b).
above the grade  of 0-6; all such 
statutes.
could hold the rank of rear  admiral (lower

statUte authorizes a *while so serving'
MO active-duty judge advocate goes before a regular 
cmmre 10 U.S.C. 

§§ 611 et seq., with 

prouwtions  are accomplished through either the J
85 5148 and 5149. Th
AJAG

ao long as he held the 

promotion to pay grade O-7.

See 10 U.S.C. 

§ 5013(g) (1).

 half) only 

10 U.S.C. 

DOPMA promotion board for 

prom+on

See 10 U.S.C. 

5

” 

JAGINsT 5400.1, section 

10Bb.

QTOQ

HN38

LS86  

PTQ  COL  

XVd 

0T:PT 

IO/PO/IT

11

F

4‘.  

i

.’

DAJAGs he

reporting group consisted of the  
importance, the JAG successions in effect during Captai
tenure as PDAJAG clearly provide for the  
AJAGs to succe
DJAG.48
for succession_
letters, all the 
as a group, with the senior among them  
especially important,

AJAGs would have preceded Captai

as the only duty of the 

Indeed, under the terms of the success
DAJAGs, including the PDAJAG, would be considered

Thus, all the 

succeeding.4g

supervised.47

Also of

AJAG

This point is

ute is the succession duty;

Capta

- the actual  

AJAGs, RADM

t duty
id.

Given the explicit structure of the PDAJAG

- 

.

position to incorporate certain duties if the assigned  
performing additional duties as Commander, NISCOM, the PDAJAG
never "acted" as 
AJAG (06) position,

Moreover, PDAJAG did not succeed to the

as it was never vacant.

AJAG.

AJAG were

early
en

d.

Service as PDAJAG does not qualify for flag retirement.

The 

AJAG position under  

§ 5149(b) has varied among

each with very different duties.

AJAG provision lists only the duty of

As noted above, the 
succession .
several different jobs,
legal result is that no specific duties qualify an officer for
flag retirement under the statute.
Rather, selection for the
position of 
AJAG and carrying out  
the requisite period are the qualifying factors.
AJAG; he served only as PDAJAG,
never served as  
duties properly assigned to that position.
PDAJAG, the  
officer serving as rear admiral (lower half).
other Navy  
PDAJAGs have previously requested retirement as rear
O-7."
grade 
admiral and been denied, for the conclusive reason that service as
PDAJAG is not service as  

AJAGs during this period subsequently retired in pay

AJAG (06) position was continuously filled with an

duties+.ssigned  as an 

AJAG under 10 U.S.C.  

During his tenure as

Additionally, the

5149(b).51

AJAG  for

carrying 

The

ou

§ 

Conclusion.

7.
in the grade of O-6.
and should not be disturbed.

Captai
T

uested and received retirement
tis adm
Moreover, Capt

inal
ervice

f the 
Wt have been able to confirm  tha
his fi
is was 
obition, following 
time,
noteworthy is th
war. 
assigntnents placed on  fitness  reports could frequently be inaccurate.
t the duty 
ltrs 

en b
ass
ssigned recorded  in that fitness report  

Se6 note 37, supra.

31 and 2 Nov 

26 Aug 

DAJAGs 

0f 

&ring this

for the period ending

RADM
"AJAG,"

" The SECNAV 

cne of the officers who served as DAJAGS 

during&is

85.
was junior to 
(DOB: 830601).

I 

supra.

and 

pnragraph  5, 

rvppra,  

respectively_

12

rr

LTOiPJ

HN38

LS86  

PTQ  

COL  

XVd 

0T:PT 

IO/PO/IT

!-I
.I. 

..__

This service does not qualify for the statutory  

opin'

’

retirement under 10 U.S.C.  
5 5149(b).
'two fitness reports purporting to list

AJAG.

does not qua
Despite Capt
his position
Judge Advocate General," h
served as
During the period in question, Capta
served as Principal Deputy Assistant Judge Advocate G
Code 06A.
retiFement provision_
JAG opinion and BCNR action in t
case.52

This 

. \.
.

AJAG

.-

" 

RADM McCoy's case concerned his service in the 

AJAG 

positions  or 

01 and 03.

See note 9, 

supra.

13

L-r

8TOm

IIN

L!286  

VT9  

COL  XV6  

0T:PT 

IO/PO/IT