MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           24 November 1999                   
	DOCKET NUMBER:   AR1999024616

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Robert G. Hinkle		Member	
	Mr. Lester Echols		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That his date of rank to captain be changed to           1 October 1997 with back pay and that the year group as shown on his Officer Record Brief (ORB) be corrected to 1993, the date of his commissioning.

APPLICANT STATES:  That he was commissioned in May 1993.  He was authorized a delay of entry on active duty so he could attend law school.  He should have been allowed to submit his promotion packet to the 1997 promotion board with a waiver for the required active duty.  The Army Intelligence School denied him that opportunity, making him wait until the 1998 board.  Supporting evidence is as listed on the DD Form 149.

EVIDENCE OF RECORD:  The applicant's military records show:

He was appointed a second lieutenant in the U. S. Army Reserve on 13 May 1993.  He received an immediate delay from entry on active duty to attend law school.  He was promoted to first lieutenant in the U. S. Army Reserve on 28 May 1996.  The delay from entry on active duty was continued until he was ordered to active duty on 16 September 1996 in the Military Intelligence (MI) Corps.  

The applicant attended the MI Officer Basic Course (MIOBC) from 18 September 1996 through 11 February 1997.  (The Fiscal Year 1997 (FY 97) captain promotion board convened 29 April 1997).  He was promoted to captain in the MI Branch on 1 October 1998 as a result of selection by the FY 98 captain promotion board.  He attended the Judge Advocate General Corps (JAGC) OBC from 1 October – 18 December 1998. 

The applicant’s ORB dated 1 October 1996 shows his year group as FY 93; his ORB dated 3 October 1997 shows it as FY 96; his ORB dated 5 February 1999 shows it as FY 95.

Army Regulation 600-8-29 prescribes the officer promotion function of the military personnel system.  Paragraph 1.10e(5) states that commissioned officers with less than 1 year of continuous active duty (since their most recent placement on the active duty list) before the board convenes are not eligible for consideration by a promotion selection board (Title 10, U. S. Code, section 619(c).  Requests for exception to this requirement must be forwarded through the first general officer in the chain of command to the U. S. Total Army Personnel Command (PERSCOM).  Requests must substantiate that the officer’s break in service does not warrant the protection provided by the one-year active duty requirement.  Requests for exception will be processed on a case-by-case basis.  An officer assigned to or appointed in the Chaplain or JAGC entering active duty as a first lieutenant is exempt from the 1-year rule.

Army Regulation 600-8-104 prescribes policies governing the Official Military Personnel File, the Military Personnel Records Jacket, and the Army Personnel Qualification Records.  Table 4-1 states that the basic year group is the fiscal year in which the officer entered the service.  The active duty letter/order is the source document.

In the processing of this case, an advisory opinion was obtained from the Promotions Branch, PERSCOM.  That office recommended disapproval of the applicant’s request, noting that, as the FY 97 captain promotion board convened on 29 April 1997, he had less than 1 year of continuous active duty before the board convened and so was not eligible for consideration by that board.

A copy of the advisory opinion was provided to the applicant for rebuttal.  He responded by requesting an exception to the one-year rule.  He stated the intent behind the rule presumably was that the Army did not want to promote immature, unseasoned officers who had neither the training nor the proficiency to lead soldiers.  When he entered active duty, he had completed four years of Reserve Officer Training Corps (ROTC) leadership training, excelled at Advanced Camp, received an outstanding proficiency report from Cadet Troop Leadership Training, and had been selected for the Army’s competitive Educational Delay Program.  He entered active duty with a doctorate in law.  At age 26, he was older, more educated, more mature and more seasoned than the average lieutenant initially entering active duty.  He was never told he had the option to request a waiver of the one-year rule.  Had he been informed about the exception to the rule, he could have requested the waiver and submitted a packet to the FY 97 promotion board.  He is now a year behind his peers who were commissioned with him and who entered active duty with a bachelor’s degree.  He should not be held back a year because he sought a higher education.

In a phone conversation with an analyst from the Board, the Office of the Judge Advocate General stated that they do not use the basic year group as a promotion tool.  If it were up to them, they would either use the year the applicant completed the JAGC OBC (1998) as his year group or just leave the data blank.

A copy of the above record of phone conversation was provided to the applicant for comment or rebuttal.  He responded by stating his MI Branch assignments officer changed his year group without his knowledge or consent.  Even after his opportunity for promotion selection in FY 97 was lost and he was preparing for the FY 98 promotion board, his assignments officer told him he was not eligible for that board because his year group was FY 96.  He discussed this with his assignments officer, who apologized and changed his year group to year group 95, refusing to return his record to year group 93.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinions, it is concluded:
1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

2.  The applicant entered active duty on 16 September 1996.  The FY 97 captain promotion board convened on 29 April 1997.  By regulation and by law, since he had less than 1 year of continuous active duty (since his most recent placement on the active duty list) before the board convened he was not eligible for consideration by that promotion selection board.  It is true he could have requested an exception to this requirement; however, such a request would have had to have been forwarded through the first general officer in his chain of command and then processed on an individual basis. 

3.  The Board concludes that PERSCOM would not have granted the exception. The applicant did not have just a break in service prior to entering active duty in September 1996; he had had no prior active duty.  “Immaturity” does not relate to age alone.  The Board grants the applicant was older, more educated and more mature in age that his peers who were commissioned with him in FY 93 but disagrees that he was more “seasoned” in the area that truly counts in a leadership position – active duty experience.  While less “mature,” his peers had a background of three years active duty, many certainly with the experience of contingency deployments behind them, that the best training given and grades received in ROTC cannot compete with.  

4.  Neither could the applicant have received an exemption of this requirement by claiming he was a JAGC officer who entered active duty as a first lieutenant.  He entered active duty as an MI officer and went to MIOBC prior to attending the JAGC OBC.

5.  The Board does find an error with the applicant’s year group on the latest available copy of his ORB.  While the regulation provides a somewhat vague definition of basic year group (the fiscal year in which the officer entered the service), the source document used to obtain this information makes it clear that the date meant is the date he entered active duty.  The applicant was appointed a second lieutenant in FY 93 but he did not enter active duty until FY 96 (not FY 95).  His assignments officer may have administratively changed his year group to FY 95 to enable him to be considered by the FY 98 captain promotion selection board.  In any case, his assignments officer did not require his consent in order to change it from FY 93.  Army Regulation 600-8-104 provides the guidance on determining an officer’s year group.  

6.  However, in view of the information obtained from the Office of the Judge Advocate General, the Board will not direct that any change be made to the applicant’s year group as shown on his ORB.  The applicant should address such concerns to the Office of the Judge Advocate General.  

7.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__rvo___  __rgh___  ___le___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999024626	
SUFFIX		
RECON		
DATE BOARDED	19991124	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	131.03	
2.	100.00	
3.		
4.		
5.		
6.