DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX HD:hd
WASHINGTON DC 20370-5100 Docket No. 02806-08
8 August 2008
This is in reference to your application for correction of your
naval record pursuant to the provisions of title 10 of the
United States Code, section 1552.
You requested restoring your original lineal number of 09531800,
reinstating your original pay grade O-3 (lieutenant) date of
rank of 1 May 2003, allowing you to be considered for promotion
to lieutenant commander (pay grade O-4) with your original year
group of 1999, awarding you back pay from 12 September to
30 September 2006, and granting you consideration by a special
selection board.
A three-member panel of the Board for Correction of Naval
Records, sitting in executive session, considered your
application on 7 August 2008. Your allegations of error and
injustice were reviewed in accordance with administrative
regulations and procedures applicable to the proceedings of this
Board. Documentary material considered by the Board consisted
of your application, together with all material submitted in
support thereof, your naval record and applicable statutes,
regulations and policies. In addition, the Board considered the
advisory opinion furnished by the Navy Personnel Command dated
21 May 2008, a copy of which is attached. The Board also
considered your letter dated 13 June 2008.
After careful and conscientious consideration of the entire
record, the Board found that the evidence submitted was
insufficient to establish the existence of probable material
error or injustice. In this connection, the Board substantially
concurred with the comments contained in the advisory opinion.
The Board was unable to find legislative intent, concerning
entry grade credit (EGC), that a former line officer
subsequently commissioned into a staff corps may not be made
more junior than that officer was as a line officer. The Board
found you were appointed to the Judge Advocate General’s Corps
(JAGC) under title 10, United States Code, section 531, not
section 533(f), so Department of Defense Directive 1312.3 was
not applicable to your case, and you did not have to maintain
the same grade and date of rank you held before your appointment
into the JAGC. The Board noted that Chief of Naval Operations
Instruction (OPNAVINST) 1120.11 indicates that under certain
circumstances not applicable to you, the 48-month EGC maximum
may be waived to permit appointment as a lieutenant commander.
If you were incorrectly awarded constructive credit for legal
education while you were on active duty or in an active status,
the Board found this would be an error in your favor. The Board
found no requirement for the Navy to have the same EGC policies
as other services. The Board found your date of rank as a JAGC
officer was not the result of adjusting a date of rank
previously held, so the authorities you cited concerning date of
rank adjustment were inapplicable. Finally, the Board was
unable to find it was improper for your JAGC commission to be
withheld pending the results of your bar examination, noting
that paragraph 8.b.(2) of OPNAVINST 1120.11 indicates a
prerequisite is "official notification of passing the bar
examination."
In view of the above, your application has been denied. The
names and votes of the members of the panel will be furnished
upon request.
It is regretted that the circumstances of your case are such
that favorable action cannot be taken. You are entitled to have
the Board reconsider its decision upon submission of new and
material evidence or other matter not previously considered by
the Board. In this regard, it is important to keep in mind that
a presumption of regularity attaches to all official records.
Consequently, when applying for a correction of an official
naval record, the burden is on the applicant to demonstrate the
existence of probable material error or injustice.
Sincerely,
Dens
W. DEAN PFRXYFF
Executive D¥rectbr
Enclosure
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Under that formulaSUBJ: COMMENTS AND RECOMMENDATIONS ICOmost officers promoted approximately one year after graduation from law school, but there were frequent anomalies.The new implementing instruction, OPNAVINST 1120.11 signed on 29 December 2005, awards constructive service credit upon commencement of active duty at Naval Justice School. Additionally, the FY07 accession year group all have been treated similarly: they are all subject to the promotion guidelines of the new...
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