MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            16 December 1999
	DOCKET NUMBER:   AR1999026853

	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	
	Mr. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Fred K. McCoy		Chairperson	
	Mr. Raymond V. O’Connor, Jr.		Member	
	Mr. Stanley Kelley		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:  In effect, that his date of rank (DOR) for promotion to the rank of captain be adjusted and that he be granted promotion reconsideration to the rank of major.

APPLICANT STATES:  In effect, that he was originally promoted to the rank of captain on 1 August 1991 and was informed by the Total Army Personnel Command (PERSCOM) that because he entered active duty in the Regular Army with an adjusted DOR of 1 August 1994, it could not be changed now that he is serving in the USAR.  He goes on to state that had he not entered active duty and merely served as a drilling reservist, his DOR would never have been changed.  Therefore, he is in essence being penalized for serving on active duty. He also states that there are other officers who are serving as majors in the USAR, including the Active Guard/Reserve (AGR) program on active duty, who graduated from law school, and then branch transferred to the Judge Advocate General’s Corp (JAGC), with no change to their DOR.  He continues by stating that since his promotion to the rank of captain in 1991 he left active duty to attend law school, graduated in May 1994, and has remained in some form of USAR status until he reentered the Regular Army on 1 October 1994 as a Judge Advocate.  Additionally, he states that he understands that by law his DOR had to be adjusted while he served in the Regular Army but now that he is serving on active duty in the AGR program, his DOR should be adjusted back to his original DOR.

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

The applicant was commissioned as a USAR second lieutenant on 20 February 1987 with a concurrent call to active duty.  He was promoted to the rank of captain on 1 August 1991 and was honorably released from active duty as a transportation officer on 1 September 1991.  He was transferred to the USAR Control Group (Reinforcement).  

On 23 August 1994 orders were published by the Army Reserve PERSCOM (ARPERSCOM) indicating that the applicant would be accessed as a JAGC captain on 29 September 1994 with 1 year and 1 month of creditable service for the purpose of determining his appointment grade in accordance with Title 10, United States Code.  If appropriate, the constructive credit would include 3 years of constructive credit for law school in accordance with Title 10, section 3353, United States Code.  The orders also directed that the applicant be ordered to active duty to fulfill his 3-year active duty commitment and that he be placed on the active duty list (ADL) with his DOR determined in accordance with Army Regulation 624-100. 

On 24 August 1994 the applicant was appointed as a USAR captain in the JAGC with 1 year and 1 month of constructive credit.  A DOR determination was made on 18 November 1994 which gave the applicant a DOR of 1 August 1994.
He served on active duty until 2 August 1997 at which time he was honorably released from active duty and was transferred to the USAR Control Group (AGR).

On 1 December 1998 the applicant sent a letter to the ARPERSCOM requesting that his DOR be adjusted back to the date he was originally promoted to the rank of captain (1 August 1991).

The ARPERSCOM, Office of Reserve Component Promotions responded on 5 December 1999 and informed the applicant that his original promotion as a captain on 1 August 1991 was while he was serving as a transportation corps officer and that on 3 August 1994 he was reappointed as a captain in the JAGC with 1 year and 1 month of constructive credit.  It further informed the applicant that in accordance with paragraph 2-3, Army Regulation 135-155, when an officer is appointed with constructive credit, any actual service performed before that date will not be counted.  Had the applicant not been on the ADL his DOR would have been computed as 31 July 1993.  However, his active duty DOR had been determined to be 1 August 1994.

Army Regulation 135-155 prescribes policies and procedures used in the selection and promotion of officers in the USAR.  It states, in pertinent part, that service requirements for promotion to the rank of captain and above require a minimum number of years of promotion and commissioned service.  Service periods will not be counted more than once.  If an officer is given constructive service credit on appointment, any actual service before that date will not be counted.  Promotion service (time-in grade) is computed by adding all service performed (or constructive credit awarded) in the current permanent grade in the Army.  This is while in an active status, or as a Regular officer on the active list, or on the ADL.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, 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 received a grade determination at the time he was appointed as a JAGC officer and was awarded constructive credit in his new status.  He was placed on the ADL based on that determination and he has failed to show through the evidence submitted with his application or the evidence of record that his DOR was incorrectly computed or that the computation was contrary to the applicable laws and regulations.
3.  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

__sk ____  __fkm___  __rvo ___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999026853	
SUFFIX		
RECON		
DATE BOARDED	1999/12/16	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  315 	131.0500/DOR	
2.		
3.		
4.		
5.		
6.