DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100

WJH
Docket No. 4795-07
17 December 07

This is in reference to your application for correction of your naval record pursuant to the provisions of 10 USC 1552.

A three-member panel of the Board for correction of Naval Records, sitting in executive session, considered your application on 17 December 2007. 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 NPC 5420 PERS 44 of 30 July 2007 and your response of 5 October 2007.

The Board gave full consideration to the points of view expressed in your application and supporting documents. However, after careful and conscientious consideration of the entire record, a majority of 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 rationale and comments provided in the advisory 0~~fl~Ofl. Accordingly, 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 also 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,

	W.	DEAN PFEIFFER
Executive Director

Enclosure
DEPARTMENT OF THE NAVY
NAVY PERSONNEL COMMAND
S720 INTEGRITY DRIVE
MILLINGTON TN 38055.0000

5420
Pers-44
30 Jul 07

From:	Head, JAG Corps Assignment and Placement Branch
To:	Executive Director, Board for Corrections of Naval Records

Via:	Assistant for BCNR Matters, PERS-3lC

	  SUBJ:

Ref:	(a) 5420 PERS-31c Memo of 28 Jun 07
		(b) BCNR Files w/ Service Record

1.	In response to references (a) and (b), the following comments and recommendations are submitted:

2.	Background. Title 10, U.S. Code, Section 533 established the authority for providing credit to officers upon original appointment. Subsection (b) of Section 533 established the categories for which constructive service credit shall be granted for education, providing that it shall be credited pursuant to regulations prescribed by the Service Secretaries. Credit for law school falls into this category. DoD Instruction 1312.3 (Service Credit for Commissioned Officers) implements Section 533 and provides more detailed guidance on calculating service dates for original appointments. Paragraph 6.1.2 describes the purpose of constructive service credit “to provide grade and date of rank comparability for a person who begins commissioned service after obtaining the additional education, training, or experience required for appointment, designation, or assignment as a commissioned officer in a professional field relative to a contemporary who began commissioned service immediately after obtaining a baccalaureate degree.’ Paragraph  6.1.2.2.1 goes on to state that “{t]he Secretary of the Military Department concerned may award constructive service credit for advanced education or an advanced degree when an officer completes the advanced education, or receives the advanced degree in an active status.

SENCAVINST ll2O.5A previously controlled how Navy Judge Advocate General Corps officers were awarded constructive service credit. Under that instruction, an arcane formula factored in both law school graduation date and initial commissioning date as a 1955 inactive reserve officer under instruction. Under that formula

most 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. Officers therefore promote to LT one year after they begin active duty at NJS. As a result, officers now typically remain LTJGs for four to eight months longer than under the previous instruction.

3.	Here, and the other five petitioners argue that the guidelines of SECNAVINST 1l20.5A should apply to them because it was in effect when they were appointed (signed their oath and accepted their commission) instead of the instruction in effect when they came onto active duty, OPNAVINST 1120.11. An analysis of the updated instruction and its impact follows.

4.	In the summer of 2005, the Secretary of the Navy directed a review of all SECNAV Instructions for revision, consolidation, and/or downgrading to OPNAV Instructions. The instruction governing the appointment of new accessions into the JAG Corps, SECNAVINST ll2O.5A dated 14 May 1986, was reviewed as part of this updating effort. Recommended changes included updating the maximum age limit to 42; updating the active duty obligation to 4 years; removed pre-law and first-year law students from program eligibility; and changed how and when entry grade credit was applied to new accessions. The new instruction, OPNAVINST 1120.11, was signed on 29 December 2005. As noted above, it ties LT date of rank to the date officers begin active duty at NJS:
officers are promoted to LT one year thereafter. The decision to change the calculation for LT date of rank was long overdue, and resolved persistent anomalies in our promotion process. In hindsight, the instruction should have stated clearly that the change would be effective with FY07 accessions. Instead, it was effective upon signature with the caveat that “Processing initiated before the date of this instruction will be continued pursuant to policy and instructions in effect before that date.”

5.	As a result, several concerns became immediately apparent:

a.	First, FY06 accessions expected early promotion based on then-current information, and they may have detrimentally relied on that information. The new instruction was signed earlier than expected and students beginning NJS and active duty in January 2006 had little or no notice their situation would change.

b.	Second, publication of the instruction on 29 Dec 2005 effectively split a year group in half, meaning half of FY06 accessions (2005 law school graduates) promoted to LT under the “old” rules and half under the “new rules.” Most JAG Corps accessions graduate in May, take the bar exam in July, and attend NJS the following October or January. NJS class assignments are made based on when we expect students to receive notification of passing bar results — something students cannot control. Disparate treatment of the same year group, merely because one half attended a later NJS class, constituted unwanted and unexpected disparate treatment.
In light of these inequities and disparate treatment among the FY06 accession class, the JAG Corps supported granting relief to members of that class when they petitioned BCNR. Although technically the new instruction should have applied to all students beginning NJS after its signature, the equities clearly argued for treating all officers who came on active duty in FY06 similarly.

6.	FY07 Petitions: The current petitioners are officers who graduated from law school in 2006, and began NJS in FY07, either in the October 2006 or January 2007 class. They argue they “began processing” prior to the new instruction, and should receive constructive service credit according to the old instruction. Their argument relies on ambiguous language in the instruction, but lacks the equitable arguments of accessions affected in the FY06 year group. The accessions detailer notified all FY07 accessions after the instruction came out, nearly a year before they began active duty, thus giving the group time to adjust their promotion expectations. Additionally, the FY07 accession year group all have been treated similarly: they are all subject to the promotion guidelines of the new instruction.

Although the officers rely on the argument that they began “processing” when the old instruction was in effect, what actually matters is what instruction was in effect when they received their 2500 commission, as constructive credit can only be applied to an active commission. The constructive credit cannot be applied to their reserve commissions as they argue. Absent the equitable arguments present for the FY07 accessions, there is no basis for granting relief to these petitioners.

7.	The JAG Corps previously supported providing relief, and BCNR granted relief, to JAG Corps Lieutenants who began active duty in FY06. The JAG Corps supported providing relief based on the combination of detrimental reliance and the disparate treatment within the same FY06 accession year group. The JAG Corps does not support relief to the six petitioners here because they began active duty in FY07, had ample notice of the instruction change, and received uniform treatment as an accession year group.

8. Recommend denying petitioners’ applications for correction of their military record, as well as all other JAG Corps accessions who commissioned prior to 29 December 2005 but did not begin active duty until FY07 or later.