IN THE CASE OF: BOARD DATE: 3 May 2016 DOCKET NUMBER: AR20150006174 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 correction of his records to show his mandatory removal date (MRD) as 1 March 2018 vice 1 June 2015. 2. The applicant states: a. The time he attended law school, August 1989 to May 1992, should be excluded from his MRD. The U.S. Army Human Resources Command (HRC) incorrectly identifies his MRD as 1 June 2015; however, under Title 10 U.S. Code (USC), section 14706, the period he attended law school is excluded from the computation of total years of service and his MRD should be 1 March 2018. b. As of 29 November 2014, HRC identified his MRD as 30 September 2020. On 28 February 2015, he discovered his MRD had changed to 1 June 2015. HRC made this 5-year deduction without providing him any notice. The personnel section of his unit was closed for most of the weekend on 28 February 2015, so he was unable to discuss the matter until the next battle assembly. In the interim, HRC issued him retirement orders on 13 March 2015. c. On 21 March 2015, he provided his personnel section with the enclosed memorandum and attachments explaining the period he attended law school should be excluded from his MRD. To date, HRC has not corrected his MRD despite the time sensitivity of this issue. d. In addition to the legal basis for correction of his MRD, it would be an injustice to the Army to not let allow him to continue to serve. He graduated from the U.S. Army War College (USAWC) on 25 July 2014 and his recent mobilization history includes 1 year at Fort Hood, TX, 18 months at the U.S. Central Command (CENTCOM), and 23 months at the Office of Military Commissions (OMC). His mobilization experience and USAWC training makes his continued service valuable to the Army. e. Title 10 USC, section 14706(a) states, in part, “For the purpose of this chapter and chapter 1407 of this title, a Reserve officer’s years of service include all service of the officer as a commissioned officer of a uniformed service other than…service after appointment as a commissioned officer in 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 (emphasis added). f. He attended drills (battle assemblies) during law school. However, the unit was not a Judge Advocate (JA) unit but a Military Intelligence (MI) unit. Therefore, he was not serving in the JA specialty while he was a student in law school obtaining his first professional degree required for assignment to the JA General (JAG) Corps. Only after completing law school was he assigned in the JAG Corps; so the time he attended law school is excluded from the computation of his total years of service. g. In May 2010, his unit was mobilized to Fort Hood. He was the senior officer with the unit and consequently dealt with the plethora of issues that must be addressed when a Reserve unit mobilizes. After serving at Fort Hood, he chose to stay on active duty and served as the Chief of Administrative Law, CENTCOM. He advised senior officers on a wide-array of issues in the most operational combatant command. At OMC, which deals with the detainees at Guantanamo Bay, Cuba, he managed an office of 44 personnel including 16 attorneys, conferred with members of the Iraqi diplomatic corps, engaged with the media, and graduated from the USAWC through the Department of Distant Education. h. He first enlisted in the U.S. Army Reserves (USAR) in 1983 and was commissioned as an MI officer through the Reserve Officers’ Training Corps (ROTC) in 1987, and began serving with the JAG Corps in 1993. His service included time in Germany and Iraq and he continues to be in a position to give back to the military the knowledge and experiences he has gained over a successful career. 3. The applicant provides: * two DD Forms 214 (Certificate of Release or Discharge from Active Duty) * an undated self-authored memorandum to his USAR unit commander * memorandum, dated 10 October 2014 * Personnel Qualification Record (PQR), dated 1December 2014 * four orders, dated between 13 August 2010 and 13 March 2015 * DA Form 67-10-2 (Field Grade Plated (O-4-O5; CW3-CW5) Officer Evaluation Report (OER)) for the period 26 October 2013 through 1 July 2014 * five DA Forms 67-9 (OER) for the periods 31 January 2009 through 25 October 2013 * two DA Forms 1059 (Service School Academic Evaluation Report (AER), dated 24 September 1993 and 25 July 2014 * two DA Forms 67-8 (OER) for the periods from 20 December 1988 through 19 November 1990 * DD Form 220 (Active Duty Report), dated 9 July 1993 * letter, dated 17 May 1987 * DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States), dated 21 October 1983 * AHRC Form 871 (MRD Computation), undated * five certificates * an award citation * an academic transcript * three screenshots of the HRC portal * his resume * one page titled Title 10 – Armed Forces CONSIDERATION OF EVIDENCE: 1. The applicant was born on 14 December 1964. Having had prior enlisted Reserve service while in ROTC, the applicant was appointed as a second lieutenant Reserve officer in the MI Corps on 17 May 1987, at the age of 22, and he executed an oath of office on that date. He was assigned to the 47th MI Detachment, Morgantown, WV. 2. He was awarded a Bachelor of Arts degree on 15 May 1988 from WV University, Morgantown. He attended and successfully completed the MI Officer Basic Course (OBC) in December 1988. He was promoted to the rank of first lieutenant (1LT) in the MI Corps on 26 May 1990. 3. He provides an academic transcript, dated 2 December 2013, wherein it shows he attended the WV University Law School from the fall term 1989 to the spring term 1992 and was awarded a Doctor of Jurisprudence degree on 17 May 1992. 4. He entered active duty as a Reserve officer on 5 July 1993. He attended and successfully completed the JAG OBC on 24 March 1993. On 10 September 1993, he was promoted to the rank of 1LT in the JAG Corps with an adjusted date of rank (ADOR) of 11 December 1991. 5. On 4 January 1994, he was promoted as a Reserve officer to the rank of captain (CPT). He was honorably released from active duty on 1 September 2001 and he was transferred to the USAR. 6. On 2 May 2004, he was promoted to the rank of major (MAJ) in the USAR. He served on active duty as a member of his Reserve unit from 21 August 2005 to 13 June 2006. During this period of service, he served in Kuwait/Iraq from 3 October 2005 to 14 May 2006. 7. He entered active duty as a Reserve officer on 1 May 2010. On 6 August 2010, he was promoted to the rank lieutenant colonel (LTC). He was honorably released from active duty on 30 April 2011 and he was transferred to his USAR unit. 8. He entered active duty as a Reserve officer on 1 May 2011 and he was honorably released from active duty on 30 September 2014 and he was transferred to the USAR Control Group. 9. On 21 November 2014, he was released from the USAR Control Group and assigned to the USAR, 352nd Civil Affairs Command (CACOM), Fort George G. Meade, MD. 10. The applicant provides and his record contains his PQR, dated 1 December 2014, listing his MRD as 30 September 2020. 11. Orders 15-072-00011, dated 13 March 2015, issued by Headquarters (HQ), USAR Command, reassigned the applicant to the Retired Reserves effective 1 June 2015 by reason of maximum years of service. 12. In the processing of the case, an advisory opinion was obtained from the Office of the Deputy Chief of Staff, G-1 on 15 September 2015. The advisory official recommended denial of the applicant’s request to change his MRD to 1 March 2018 and stated, in part: a. Army Regulation (AR) 601-25 (Delay in Reporting for and Exemption from Active Duty, Initial Active Duty for Training, and Reserve Forces Duty) provides the Army’s implementation guidance of Title 10, USC, section 14706 in prescribing policy and procedures for educational delays for Reserve Component (RC) officers. For the purposes of section 14706, an officer who pursues a graduate or professional degree while in an educational delay status under the provisions of Title 10, USC, as implemented by AR 601-25 and AR 145-1 (Senior ROTC Program; Organization, Administration, and Training), may properly be deemed to be in a “program of advanced education” served in a “student status.” Such a delay allows the officer to focus his or full attention on completing their postgraduate degree before serving on active duty or in a Selected Reserve unit. b. There is no evidence that the applicant applied for or was granted an educational delay while pursuing his Juris Doctor degree. However, the service to be factored in computing his MRD is based upon the same statutory provisions as an officer who was delayed for educational purposes in accordance with AR 601-25. c. The advisory official’s office had been advised in legal opinions from The JAG’s (TJAG) office that Title 10, USC, section 14706(a)(3) provides that the exclusion rule may only be applied to those officers whose initial service in other than a student status, after beginning service in a student status, is on active duty or in the Ready Reserve in the professional specialty that results from the degree obtained during the authorized period of educational delay. Thus, if an officer’s initial service on active duty or in the Ready Reserve following completion of his or her advanced specialty is outside the specialty that resulted from the degree obtained while in an educational delay status, the period of student status is not excludable by section 14706. d. The applicant performed his initial service in the Ready Reserve with assignment in the MI Corps, outside the specialty that would have resulted from an educational delay, had he been serving under such delay. He was awarded his Juris Doctor degree on 17 May 1992 and continued serving in the MI Corps until he reported to active duty on 5 July 1993 with appointment as a JAG Corps officer. Therefore, the applicant’s service during attendance at law school is not excludable under the provisions of Title 10, USC, section 14706 and his MRD was properly corrected to 1 June 2015. 13. In a response to the advisory official, dated 15 October 2015, the applicant stated, in part: a. The advisory opinion was nonresponsive and did not address the issues he raised pertaining to Title 10, USC, section 14706, and the period he attended law school should be excluded from his MRD, making his MRD 1 March 2018. However, since he was wrongfully retired on 1 June 2015, he now requests to be returned to military service with any time since 1 June 2015 also excluded from his MRD. b. The advisory opinion referred to legal opinions from TJAG but did not enclose the legal opinions with the advisory opinion. He requests the opinions be provided to him with sufficient time to respond to the opinions. c. Title 10, USC, section 14706, anticipates two classes of Reserve officers attending law school; those serving as non-JAG officers while in law school and those requesting not to serve while in law school. In both cases, the time served is to be excluded from the years of service when calculating MRDs. The advisory official is attempting to void the portion of the statute pertaining to Reserve officers who serve as non-JAG officers while attending law school; however, the law is clear on this. d. Title 10 USC, section 14706(a) states, in part, “for the purpose of this chapter and chapter 1407 of this title, a Reserve officer’s years of service include all service of the officer as a commissioned officer of a uniformed service other than…service after appointment as a commissioned officer in 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.” f. The advisory opinion discusses officers not requesting to serve while in law school per AR 601-25 and is disingenuous in attempting to deflect the inquiry from the law to a regulation. He did serve while attending law school; however, his service was as an MI officer and not a JAG officer. Therefore, his service should not be counted as time served for his MRD. In continuing to reference AR 601-25, the advisory official is implying it can use its general authority to render inoperative a portion of Title 10, USC, section 14706, and thereby exclude an entire class of officers covered under the stature. g. "It is a longstanding and well established principle of statutory construction that a specific statute controls over general one” (Driscoll v. George Washington University quoting Bulova Watch Company v. United States). A government agency cannot legally rely on its general authority to nullify a statue’s specific provisions and is not legally permitted to pick and choose what portions of the statue with which it wishes to comply; rather, it must comply with an entire statue. “A cardinal principle of statutory interpretation requires a court to construe a statute so that no provision is rendered inoperative or superfluous, void or insignificant" (Netcoalition v. SEC). h. The advisory official implies that in order to exclude the time in law school from MRD calculation, an officer is prohibited from serving in a non-JAG capacity while in law school and that is in direct conflict with the law. Title 10, USC, section 14706(a) excludes “service after appointment as a commissioned officer” while in law school “if that service occurs before the officer commences” service as a JAG officer. 14. On 24 February 2016, the applicant was provided two legal opinions, published by the TJAG on 27 June 2003 and 4 January 2005, respectively, that stated, in part, if an officer’s initial service on active duty or in the Ready Reserve following completion of his or her advanced specialty is outside the specialty that resulted from the degree obtained while in an educational delay status, the period of student status is not excludable by Title 10 USC, section 14706. 15. In a response to the legal opinions received on 22 March 2016, the applicant stated, in part: a. After further review and consideration of the pertinent law, he withdraws his previous assertions regarding the law in this case. After additional consideration, he can conceive of a reasonable argument that the government could make regarding the law that makes the material assertions correct in this matter. b. He now asserts his appeal on the basis that it would be an injustice to the Army to not allow him to continue to serve given his recent experience and his latest mobilization history. He requests that he be given the relief requested - recalculation of his MRD to exclude his time in law school as well as the time elapsed since his break in service from 1 June 2015. 16. Title 10 USC, section 14706 states, in part: a. Section 14706(a) For the purpose of this chapter and chapter 1407 of this title, 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. (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. b. Section 14706(b) The exclusion under subsection (a)(3) does not apply to service performed by an officer who previously served on active duty or participated as a member of the Ready Reserve in other than a student status for the period of service preceding the member’s service in a student status. c. Section 14706(c) For purposes of subsection (a)(3), 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 a JA. 17. Title 10, USC, section 14507, provides, in part, that a commissioned officer who holds the rank of LTC and who is not on a list of officers recommended for promotion to the next higher grade shall (if not earlier removed from the Reserve Active-Status List) be removed from that list under section 14514 of this title on the first day of the month after the month in which the officer completes 28 years of commissioned service. 18. AR 140-10 (Army Reserve - Assignments, Attachments, Details, and Transfers) provides, with some exceptions, for the separation of MAJ, LTC, and colonels for maximum age and/or length of service. It specifies that 1LT, CPT, MAJ, and LTC shall be removed on the earliest of the following dates: at 28 years of commissioned service if under age 25 at the time of the initial appointment or on their 53rd birthday if age 25 or older at the initial appointment. DISCUSSION AND CONCLUSIONS: 1. The applicant contends his MRD should be adjusted to 1 March 2018 and requests the time he spent in law school be subtracted from his MRD, in addition to the time since his release from the USAR on 1 June 2015, as it would be an injustice to not allow him to continue to serve given his experience and mobilization history. 2. The applicant’s many years of honorable service are noted; however, as he was appointed from ROTC as a Reserve officer in the MI Corps and not the JAG Corps, there is no basis to exclude the time he spent in law school from his years of service. His MRD was properly established as 1 June 2015 based on his initial appointment date and that is the date he was released from the USAR and assigned to the Retired Reserves. As an operation of law, the maximum length of service for a Reserve LTC is 28 years commissioned service. Any exception based on the quality of service would render the law meaningless and frustrate the intent of Congress. There was no error or injustice. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X____ ___X_____ ____X____ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _______ _ __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) AR20150006174 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150006174 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1