IN THE CASE OF: BOARD DATE: 21 July 2016 DOCKET NUMBER: AR20160003490 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ___x ____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 21 July 2016 DOCKET NUMBER: AR20160003490 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. IN THE CASE OF: BOARD DATE: 21 July 2016 DOCKET NUMBER: AR20160003490 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 reconsideration of his request that his mandatory removal date (MRD) be adjusted from 1 June 2016 to 1 June 2019. 2. The applicant states his previous request was for retroactive recognition of "student status." The law concerning inclusion or exclusion of law school time was enacted in 1999. He entered the Judge Advocate General (JAG) Corps in 1995 and he did not have the opportunity to exclude his law school time. a. He states three important developments have occurred since the Army Board for Correction of Military Records (ABCMR) decision on 20 August 2013. (1) He was not selected for promotion to colonel/pay grade O-6, so his MRD is impending. He states the U.S. Army Human Resources Command (HRC) Non-Select document he provides shows his service as starting in 1995, not 1988. This is an admission by HRC that his commission in 1995 was a new commission, not a continuation of prior service. (2) A U.S. Court of Federal Claims case involving a Navy captain (O-6) interpreting an in pari materia statute (i.e., sharing a common purpose or relating to the same subject and construed together as one law) is no longer being challenged by further litigation. The appeal from that decision, dismissed as moot on 20 June 2013, left in place the 2012 opinion of the U.S. Court of Federal Claims. In that case, the Board for Correction of Naval Records (BCNR) gave an inappropriate level of deference to the Navy's interpretation of the statute in question. His application to the ABCMR was submitted on 16 April 2013 before the opinion in Prochazka v. The United States was final. His case is a parallel situation and he requests the ABCMR conduct a de novo review of the calculation of his MRD (with no deference to the HRC advisory opinion) based on Congressional intent from legislative history and the language of Title 10 (Armed Forces), U.S. Code (USC), section 14706 (10 USC 14706). (3) His requests for a Special Selection Board (SSB) and a discretionary one-year extension of his MRD have been denied. b. He cites 10 USC 14706(a)(3) as the basis for the change to his MRD. A de novo analysis of the statutory provision shows three years of his service should not be included in the calculation of his MRD. (1) He states that he was appointed as a commissioned officer in the U.S. Army Reserve (USAR), Transportation Corp (TC), in 1988 and he: * entered active duty in January 1989 * was released from active duty in September 1992 and transferred to a Troop Program Unit (TPU), USAR * entered law school (advanced education) in September 1992 * was promoted to captain (TC, USAR), on 17 January 1995 * was commissioned (USAR, JAG Corps), in September 1995 (2) He states it is apparent from the Department of the Army appointment memorandum (1995) that this was his initial appointment into the specialty that resulted from the degree. If it had been otherwise, it would have addressed him as "captain" (CPT) not "first lieutenant" (1LT) and his date of rank (DOR) would have remained 17 January 1995, but it was adjusted to 30 September 1995. c. He states 10 USC 14706(b) excludes certain years of service from being considered under the previously discussed section. Specifically, "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 members' service in a student status." He asserts that an analysis of this section shows the exclusion does not apply to his situation. (1) He states it does apply to his service on active duty from January 1989 to September 1992. (2) As originally enacted in 1994, a reserve officer's years of service includes all service (other than constructive service) of the officer as a commissioned officer of any uniformed service (other than service as a warrant officer). The provision was expanded in 1999 via amendment to its current coverage. This explains why his MRD was not calculated to be 30 June 2019 when he entered the JAG Corps in 1995. (3) Student status is undefined and without interpretive decisions. However, it has legislative history and should be given its plain meaning. (4) Congressional intent is to allow for officers who are independently seeking a professional degree or qualification to exclude those years, regardless of whether the Army prospectively recognizes the officer's student status or not. He draws a comparison between how an officer in the Chaplain's Candidate Program who pursues a Divinity degree at his/her own expense while remaining on the Reserve Active Status List (RASL) and serving in a TPU may serve an additional number of years while an officer who independently pursues a Juris Doctor at his/her own expense is denied an additional number of years of service. He notes that there is no reason for different professional officers to be treated differently simply because the Chaplain Corps had foresight concerning development of their corps, while the JAG Corps did not. (5) He cites 10 USC 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 Services Corps, the Nurse Corps, or the Army Medical Specialist Corps, or is designated as a chaplain or judge advocate." He states the provision makes clear that those particular professions are the ones in which the Army wants officers to pursue professional degrees without cutting their post-professional certification career short. He adds that the interpretation excluding his law school years from MRD puts into effect all the words of the statute; any other interpretation makes, "in the specialty that results from such a degree" ineffectual. d. The legislative history concerning "college student commissioning service status" supports his position. He refers to a Senate Armed Services Committee report (U.S. Senate, Report 105-50, Congressional Budget Act of 1974 by the Committee on Appropriations, Section 519) and a House of Representatives, Report 106-301, National Defense Authorization Act for Fiscal Year 2000 (FY00), Conference Report, Section 515). The provisions were intended by Congress to permit reserve officers to serve several more years before facing mandatory separation. e. He asserts that the plain language of 10 USC 14706 covers his years of service while in law school in a TPU status. f. He maintains that HRC should have recalculated the MRDs for all similarly situated officers in 1999 when the amendment to 10 USC 14706 was passed; however, they did not. He states this is an injustice that should be corrected for everyone affected and who applies for recalculation of their MRD. He requests the ABCMR grant his petition. 3. The applicant provides the following: * previously considered documents: * 4 September 1992, DD Form 214 (Certificate of Release or Separation from Active Duty) * accession memorandum (JAG Corps) * promotion order (CPT, JAG Corps) * additional documents as new evidence: * his request for MRD extension/recalculation (summarized above) * HRC non-select document * Prochazka v. The United States, Number 06-827C * BCNR, Docket NR9239-13, dated 11 April 2014 (redacted) * 10 USC 14706 * ABCMR Docket Number AR20130007920, dated 20 August 2013 CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20130007920 on 20 August 2013. However, this is a de novo review of the applicant's case. 2. The applicant was appointed as a Reserve commissioned officer of the Army in the rank of second lieutenant (TC) on 27 May 1988. He was promoted 1LT on 18 January 1991. 3. U.S. Total Army Personnel Command, St. Louis, MO, memorandum, dated 22 August 1995, and a DA Form 71 (Oath of Office – Military Personnel) show the applicant was appointed as a Reserve commissioned officer of the Army in the rank of CPT (JAG Corps) on 9 September 1995. (The memorandum is addressed to the applicant as "1LT" whereas the Oath of Office shows "CPT." 4. U.S. Total Army Personnel Command, St. Louis, MO, Orders A-08-003928, dated 23 August 1995, ordered the applicant to active duty and for him to proceed from his (then) current location in time to report on 1 October 1995 in the grade of CPT, JAG Corps (USAR). 5. Headquarters, U.S. Total Army Personnel Command, Alexandria, VA, Order Number 326-015, dated 22 November 1995, promoted the applicant to CPT, JAG Corps, with an active duty list DOR (ADOR) of 30 September 1995. 6. He entered the Active Guard/Reserve (AGR) program on 9 May 2004. He was promoted to lieutenant colonel (LTC)/pay grade O-5 on 21 June 2010. 7. A DA Form 5016 (Chronological Statement of Retirement Points) shows the applicant has. a. Continuous qualifying active service, as follows: * USAR: 27 May 1988 through 8 May 2004 * AGR (USAR): 9 May 2004 through 26 May 2015 * 27 total years of qualifying service for retirement b. In pertinent part, creditable points for the following retirement year (RY) beginning/RY ending (RYE) dates – (1) RY 27 May 1992 / RYE 26 May 1993 – * Inactive Duty: 032 * Extension Course: 000 * Membership: 015 * Active Duty: 112 * Total Points: 159 (2) RY 27 May 1993 / RYE 26 May 1994 – * Inactive Duty: 046 * Extension Course: 000 * Membership: 015 * Active Duty: 010 * Total Points: 071 (3) RY 27 May 1994 / RYE 26 May 1995 – * Inactive Duty: 042 * Extension Course: 000 * Membership: 015 * Active Duty: 022 * Total Points: 079 c. It further shows he was credited with one (1) qualifying year for retirement purposes for each one of the three (3) RYs summarized in 7b, above. 8. A review of his records shows his MRD as 1 June 2016 (i.e., 28 years for LTC (O-5); 27 May 1988 through 26 May 2016). 9. In support of his request for reconsideration he provides the following additional documents as new evidence. a. HRC FY15 AGR, Reserve Component (RC), Promotion Selection Board (PSB), that shows the applicant was considered by the board as a LTC, JAG Corps, "In Zone" and was a non-select. It also shows, in pertinent part: * "Service Start Year: 1995" * Officer Evaluation Reports beginning/effective 4 September 1995 * Award Documents beginning/effective 20 June 1990 * "My Board" file verified/certified by applicant on 22 June 2015 b. Frank J. Prochazka, Plaintiff, v. The United States, Defendant, Number 06-827C, U.S. Court of Federal Claims. (1) Subsequent history shows Appeal dismissed, by Motion denied by, as moot Prochazka v. United States on 20 June 2013. (2) The judge's memorandum opinion and final order included an examination of the history of 10 USC 6388 (Retirement in the Navy from 8 December 1967 through 15 September 1981); Public Law Number 96-513, 1980 (Defense Officer Personnel Management Act), effective 15 September 1981; and Secretary of the Navy Instruction 1821.1 (Regulations to Govern the Computation of Total Commissioned Service for Purposes of Involuntary Retirement or Discharge of Certain Staff Corps Officers), dated 29 January 1982. The court examined, in pertinent part, the law and Navy policy with respect to certain Regular officers in the JAG Corps. (3) Summary of plaintiff's military service: * On 8 July 1971, he entered the Navy JAG Corps (JAGC) Law Student Program and accepted a permanent appointment as an unrestricted line officer on inactive duty in the Naval Reserve (USNR) with the grade of ensign. * Thereafter, he attended law school at his own expense. On 1 January 1973, he received a temporary appointment as an unrestricted line officer lieutenant (junior grade), effective 2 December 1972, and served on active duty while he attended a training course in the summer of 1973. * On 27 December 1974, he began active duty service in the USNR JAGC. On 14 April 1975, he accepted a permanent appointment in the USNR JAGC with the rank of lieutenant (junior grade). On 25 June 1975, he received a temporary appointment in the USNR JAGC as a lieutenant (the next higher grade) and continued to serve on active duty. * On 20 September 1977, he transferred from the USNR to the Regular Navy JAGC with a back-dated DOR of 2 December 1972 * promoted to CPT (O-6), JAGC, on 1 October 1994. * involuntarily retired on 1 July 2002 pursuant (presumably) to 10 USC 634(a) (30 years of commissioned service) (4) His service was adjusted for 1 year constructive service credit (i.e., in error, but to the advantage of the plaintiff) for a total of 27 years, 7 months, and 28 days active duty and 3 years, 3 months, and 25 days JAG Student Program. (5) Several Navy advisory opinions and court remand proceedings before the BNCR were considered. The parties filed motions for summary judgment on the administrative record/response. (6) With respect to officer Reserve/Regular appointments, the legislative history indicated that the Navy and Congress used the words "originally" and "initially" interchangeably, without designating any special meaning to the word "initially" or recognizing any significance of the statutory definition of "originally.' (7) Pursuant to 10 USC 6388(b), the court found the plaintiff was initially appointed into the Regular Navy on 20 September 1977 and that he served continuously on the active list of the Navy since that date. Therefore, his MRD should have been computed from 30 June 1977 of the fiscal year in which he accepted an appointment to the Regular Navy. (8) The court denied the Government's motion for Summary Judgement on the Administrative Record, granted the plaintiff's Cross-Motion for Judgment on the Administrative Record, and remanded the case to the BCNR to correct the plaintiff's record to show the proper retirement date. c. BCNR Docket Number NR9239-13, dated 11 April 2014 that shows, in pertinent part; a former Navy commissioned officer requested reconsideration of his request for adjustment of his MRD (to 30 years) because his MRD was incorrectly adjusted based on inactive service while he was in the Law Student Program. (1) 10 USC 6388 and Prochazka v. United States were considered by the BCNR in deciding the petitioner's case. (2) It shows the petitioner was informed that his time in the inactive reserve in the Law Student Program did not count toward retirement as a Regular officer. In January 2004, a Navy Personnel Command detailer informed him his MRD was in 2008 (vice 2007). In October 2006, he was issued retirement orders effective 30 June 2007. (3) The BCNR concluded the Prochazka v. United States case to be compelling in that the facts involving the officer in that case and those in the petitioner's case were similarly situated in that the petitioner had a reasonable belief in interpreting the provision of 10 USC 6388 to allow him to exclude his time in the Law Student Program from the calculation for his MRD. It noted the confusion in the interpretation of 10 USC 6388 and the information provided to the petitioner by the Navy detailer was sufficient evidence to support the reasonable belief the petitioner held. The BCNR granted adjustment of the petitioner's records to a 30-year MRD (i.e., 28 February 2008). REFERENCES: 1. 10 USC, 14706 (Computation of total years of service). 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; or (3) service after appointment as a commissioned officer of a RC 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. 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. 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 Judge Advocate. 2. A search of the Office of the Law Revision Counsel, U.S. Code website shows Title 10, USC, Subtitle C (Navy and Marine Corps), Part II (Personnel), Chapter 573 (Involuntary Retirement, Separation, and Furlough), was repealed by Public Law 96-513, Title III, section 335, dated 12 December 1980, (1994, Statute 2898). 3. 10 USC 101, in pertinent part, provides: * subparagraph (b), Personnel Generally, "The term 'original' with respect to the appointment of a member of the armed forces in a regular or RC, refers to that member's most recent appointment in that component that is neither a promotion nor a demotion." [Clause (35) provides, "The word 'original' is defined to make clear that when used in relation to an appointment it refers to the member's first appointment in his current series of appointments and excludes any appointment made before a lapse in service."] * subparagraph (d), Duty Status: * "The term 'active duty' means full-time duty in the active military service of the United States. Such term includes full-time training duty, annual training duty, and attendance, while in the active military service, at a school designated as a service school by law or by the Secretary of the military department concerned. Such term does not include full-time National Guard duty." * "The term 'active service' means service on active duty or full-time National Guard duty." * "The term 'active status' means the status of a member of a RC who is not in the inactive Army National Guard or inactive Air National Guard, on an inactive status list, or in the Retired Reserve." 4. 10 USC also provides, in pertinent part, in – * Section 531, subparagraph (c), "Subject to the authority, direction, and control of the President, an original appointment as a commissioned officer in the Regular Army, Regular Air Force, Regular Navy, or Regular Marine Corps may be made by the Secretary concerned in the case of a reserve commissioned officer upon the transfer of such officer from the RASL of a reserve component of the armed forces to the ADL of an armed force, notwithstanding the requirements of subsection (a)." * Section 10141, "There are in each armed force a Ready Reserve, a Standby Reserve, and a Retired Reserve. Each Reserve shall be placed in one of those categories. Reserves who are on the inactive status list of a RC, or who are assigned to the inactive Army National Guard or the inactive Air National Guard, are in an inactive status. Members in the Retired Reserve are in a retired status. All other Reserves are in an active status (emphasis added)." * Section 10142, "The Ready Reserve consists of units or Reserves, or both, liable for active duty as provided in sections 12301 and 12302 of this title." * Section 10143, "Within the Ready Reserve of each of the RCs there is a Selected Reserve. The Selected Reserve consists of units, and, as designated by the Secretary concerned, of Reserves, trained as prescribed in section 10147(a)(1) of this title or section 502(a) of title 32, as appropriate." 5. Army Regulation 600-8-29 (Officer Promotions) prescribes policies and procedures governing promotion of Army commissioned and warrant officers on the ADL. Chapter 7 (SSBs), in pertinent part, provides in: * paragraph 7-2 (Purpose of boards), SSBs may be convened under 10 USC 628 to consider an officer when the promotion board that considered an officer from in or above the promotion zone did not have before it some material information (SSB discretionary). * paragraph 7-3 (Cases not considered), when an administrative error was immaterial, or the officer, in exercising reasonable diligence, could have discovered and corrected the error in the Office Record Brief (ORB) or Official Military Personnel File (OMPF). It is the officer's responsibility to review his or her ORB and OMPF before the board convenes and to notify the board, in writing, of possible administrative deficiencies in them. DISCUSSION: 1. The applicant contends that his request that his MRD should be reconsidered based on a de novo analysis and adjusted to 1 June 2019 because there was no provision for the exclusion of law school time at the time and there have been three important developments since the original decision in his case: * HRC's acknowledgement that his commission in 1995 was a new commission, not a continuation of his prior service * the decision of the U.S. Court of Federal Claims case of a Navy captain * his request for an SSB and a discretionary one-year extension of his MRD was denied 2. The denial of the applicant's request for SSB and a discretionary one-year extension of his MRD by HRC offers an insufficient basis for granting relief. 3. The applicant was appointed as a Reserve commissioned officer on 27 May 1988 in the grade of rank of 2LT. He served continuously in the USAR in an active status (Selected Reserve and AGR Program), including during the period he attended law school (1992–1995), attaining the grade of rank of LTC in the USAR on 21 June 2010. His 28-year MRD was established as 1 June 2016. 4. The evidence of record shows the applicant was appointed as a Reserve commissioned officer in the rank of CPT (JAG Corps) on 9 September 1995 and he was ordered to active duty in that grade on 30 September 1995. Accordingly, HRC adjusted his ADL DOR for CPT to 30 September 1995. The evidence of record does not support the applicant's contention that he was appointed as 1LT (JAG Corps) or that it was a "new" (original or initial) appointment. 5. It is noted that the HRC FY15 AGR, RC PSB document shows his Service Start Year as 1995 and that his Officer Evaluation Reports correspond to his appointment in the JAG Corps, which is easily understood since the applicant was being considered for promotion as a JAG Corps officer. It is also noted that it lists his award documents beginning 20 June 1990, which included his service as USAR (TC) officer. 6. The evidence of record shows an "original" appointment refers to the member's first appointment in his current series (i.e., appointment as a Reserve and/or Regular Army officer), including appointment(s) involving promotion(s)/ demotion(s) in that series. Thus, an officer may have more than one "original" appointment. a. The applicant did not have any lapse in active service since the date of his Reserve officer appointment on 27 May 1988. In fact, he continued to receive creditable qualifying military service, which included pay and allowances, during the period of service under review (from 1992 to 1995) while he was in law school. b. There is no evidence of record that shows the applicant was appointed as a Regular Army commissioned officer. c. He had one original appointment (as a Reserve officer on 27 May 1988). 7. The evidence of record fails to show that the applicant's case is similar in situation to that of the plaintiff's in Prochazka v. United States. Specifically, in that case, the officer: * was appointed as a USNR officer (inactive duty) and he entered the Navy JAG Corps Law Student Program * after completion, he continued to serve as a USNR officer (JAGC) * he then transferred from the USNR to the Regular Navy (JAGC) * the court ruled that the petitioner's MRD should be adjusted based on the date of his (original) appointment in the Regular Navy. * thus, the petitioner's USNR service, including that when he held a USNR appointment while in the Navy JAGC Law Student Program and also as a USNR JAGC officer, was not counted in the computation of total years of service as his Regular officer's years of service. 8. 10 USC 14706, is clear in that 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 members service in a student status. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160003490 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160003490 12 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2