ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 31 August 2020 DOCKET NUMBER: AR20170009813 APPLICANT REQUESTS: Her date of commission in the US Army Reserve to be backdated from 12 September 2016 to 29 July 2016. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Email communications between applicant and SSG, at the Judge Advocate Recruiting Office (JARO) for various dates * DA Form 71 (Oath of Office) dated 12 September 2016 * Orders Number RC-079-0004 dated 20 March 2017 * Email communications with Career Manager, dated 4 April 2017 FACTS: 1. The applicant states, in effect: a. On 2 July 2016, she called SSG, at JARO, Office of The Judge Advocate (OTJAG), Fort Belvoir, VA, who was in charge of putting together her paperwork for entry into the Judge Advocate General Corps (JAGC), to inquire why she had not heard anything [on her application]. SSG looked for her file and told her that because she completed Military Entrance Processing Stations (MEPS), her packet was complete and it would go up to the medical review board shortly. However, 19 days later [on or about 21 July 2016] she received an email from SSG that stated she did not have the paperwork. b. In August of 2016, SSG asked her to contact MEPS in Los Angeles, CA because she was not able to get a hold of anyone there. The applicant was able to get ahold of someone that same day who was able to get her file to SSG in about a week. U.S. Army Reserve (USAR) Judge Advocates (JA) are not eligible for the Captain (CPT) Certification Board until a year from their commission date. The board meets every year in August, and then not again until December. The previous December board did not certify until May of the following year. Active duty JAs make CPT in 30 to 60 days. A reservist has to wait a full year even if they are on active duty orders because the JAGC does not utilize unit vacancy promotions for reservists. c. She was deployed to Kuwait since almost immediately after completion of the JA Officer Basic Course (JAOBC). As such, despite filling an active duty role for approximately a year, she will not make CPT until after she leaves theater in April 2018 because her commission date was pushed into September of 2016. She attempted to contact the Personnel, Plans, and Training Office (PPTO), OTJAG, to inquire about a unit vacancy promotion, as she was sitting in an O-3 position, but was informed that the JAG Corps does not grant them. She also contacted SSG at HRC [sic] to try and correct her swear-in date, but was told nothing could be done. Her records were compiled and medical appointments were done before July. She was proactive in checking that SSG was able to get them. d. The applicant contends that, had SSG checked her records on 2 July 2016 when she called JARO, she would have been medically cleared before August 2016, and consequently, would have gone to the August 2017 CPT Certification board. This would have prevented her from having to wait the extra four months for the December board. The applicant accepts there is a difference between active and reserves. However, as she is sitting in an active slot, her hope was to pin on CPT rank before leaving theater, especially considering that she will have been there for a full year. If this error is not corrected, she will spend an entire active year as a 1LT, to which she points out that by the promotion schedule on the active duty side, is not the intent of the JAGC. For this reason, she respectfully requests her commissioning date be recorded as 29 July 2017 [sic]. 2. A review of the applicant’s military service records shows: a. On 16 March 2016, she applied to be commissioned in the Army Reserve. A DA Form 61 (Application for Appointment) showed she elected the Judge Advocate (JA) branch (in item 6). In connection with this application, she also signed a DA Form 3574 (Certificate of Acknowledgement and Understanding of Service Requirements for Individuals Applying for Appointment in the USAR Under the Provisions of AR 135-100). b. On 9 September 2016, she was appointed as a Reserve Commissioned Officer of the Army in the rank of 1LT. The memorandum of appointment states the effective date of appointment will be annotated on her reserve reassignment order (Format 450) and that the returned execution of the oath of office constitutes acceptance of appointment. It also shows the following: (1) The Army Regulation (AR) pertaining to her appointment is AR 135-100. (2) She must successfully complete Direct Commission Course (DCC) and JAOBC within 12 months of the effective date of appointment, or be discharged in accordance with (IAW) AR 135-175. (3) She is credited with 1 year and 6 months as time in grade. Her Date of Rank, Reserve (DORRES) will be adjusted. (4) Scroll Date/Rank: “20160701/1LT” (5) Date of Acceptance and Effective Date: “20160906” c. On 12 September 2016, the applicant executed her oath of office as a Reserve Commissioned Officer. d. Orders Number C-09-612341, issued by the US Army Human Resources Command (HRC), Fort Knox, KY on 13 September 2016, shows the effective date of her appointment as 12 September 2016. Her DORRES is shown as 12 March 2015. e. On 10 February 2017, she was released from active duty training following completion of DCC and JAOBC and transferred back to her unit. f. On 24 March 2017, the applicant entered on Temporary Change of Station (TCS) status for purposed of mobilization/deployment to Kuwait, for a period not to exceed 3017 days. g. On 2 January 2018, she was honorably released from active duty. A DD Form 214 (Certificate of Release from Active Duty) shows she completed 9 months and 16 days. h. On 18 May 2018, the applicant was promoted to CPT, with a DOR of 1 May 2018. i. On 22 June 2018, Orders Number 618-173-JA22-11 appointed her in the Regular JAGC in the grade of CPT. The effective date of this Regular Army appointment is on the execution of the oath of office. Any existing or Reserve appointment as a commissioned officer is vacated upon the acceptance of this appointment. 3. The applicant provides the following: a. An email from SSG to the applicant on 21 July 2016, wherein SSG informs the applicant she needs to request a copy of her physical from the Los Angeles MEPS. SSG stated she had already done so, but the individual who gave her the instructions was incorrect. When she last spoke with the applicant, she thought she had received the physical, but after a scrub of her files upon returning from leave, she realized she had not yet received a copy from MEPS. SSG requested the applicant completed a form to return to her. She also stated that the applicant was “still on track for the October class,” and that she would ensure she remains on track anytime there is a delay due to processing by her office. b. An email from SSG on 4 August 2016 to the candidates of the JAOBC providing follow-on steps and information regarding the appointment process. c. An email from SSG on 10 August 2016 to inform the applicant she had not received a copy of her physical from MEPS and that the applicant may be able to obtain a copy of it from MEPS sooner that she could. d. A copy of her Oath of Office, which was previously referenced in paragraph 2c. e. A copy of her deployment orders, also referenced in paragraph 2f. f. Email thread dated on 4 April 2017 between the applicant and her career manager at PPTO, wherein she requests to put in a unit vacancy promotion packet, as she is in a CPT slot in her mobilization and is not eligible for promotion in the Reserves until September of 2017. Her career manger replied that promotions for USAR JAs (1LTs) go through a CPT Certification process, which take place three times per year in April, August and December. The applicant asked if she would still have to wait until after her one-year anniversary for the December board, or could she be promoted under Title 10, US Code 14315, which allows a reservist on active status to promote if they are filling a position higher than their current grade. Her career manager reiterated that the process for USAR JAs was outlined in her response. g. Email thread between the applicant and SSG on 4 April 2017, wherein the applicant states that due to her MEPS paperwork getting lost, her swear in date was not until 11 September 2016. She asked if her date of commission could be backdated to the date it could have been, had her paperwork been submitted by MEPS so that she may be able to make the August CPT Board instead of the December board. SSG explains that although she understands her reason for making such request, backdating her Oath of Office would make her appointment fraudulent, and there is nothing SSG could do to grant her request. 4. Please see below under REFERENCES for all applicable regulatory guidance. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board determined there is insufficient evidence to grant relief. 2. The Board carefully considered the applicant’s request to have her commissioning date be recorded as 29 July 2017. The Board also considered the applicant’s contention that due to an administrative delay, she was commissioned four months later than what was possible. 3. The Board found that the preponderance of the evidence indicates no error or injustice. The emails from the OTJAG indicate that they had not received the applicant’s physical/medical forms from the MEPS and that the applicant was “still on track for the October [2016] class”. There is insufficient evidence the applicant was or would have been eligible for an earlier class. 4. Otherwise, the applicant’s effective date of rank is correct. Per AR 135-100 (Appointment of Commissioned and Warrant Officers of the Army), the date of rank of an officer commissioned in the Reserve of the Army and assigned to the JAGC is the date of appointment. The applicant’s appointment memorandum, dated 9 September 2016, states that she was appointed as a Reserve Commissioned Officer of the Army in the rank of 1LT, with an effective date of appointment of 6 September 2016. 5. Per regulation, the time in grade requirements for promotion to CPT is a minimum of 2 years in the grade of 1LT. For JAG officers, they must go through a CPT certification process as well. There is insufficient evidence the applicant met these requirements. 6. Therefore, the Board found no basis on which to grant relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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 the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. X 11/12/2020 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. REFERENCES: 1. AR 135-100 (Appointment of Commissioned and Warrant Officers of the Army) prescribes policy and procedures for the appointment of commissioned and warrant officers in the Army National Guard of the United States and the USAR. a. Paragraph 3-10 (Appointment in the Judge Advocate General’s Corps) lists the minimum requirements of personnel in the JAGC. Application packets for appointment to the JAGC, USAR should be obtained from either the Commandant, TJAGSA, ATTN: JAGS–GRA, Charlottesville, VA 22903–1781 or PERSCOM, Appointment Directorate, ATTN: TAPC–OPD–RA, 9700 Page Boulevard, St. Louis, MO 63132–5200. It states applicants must have successfully completed the minimum military education requirements of AR 27–1 for JAGC officers, for the grade for which the applicant is otherwise eligible under paragraph 3–12 below. b. Paragraph 3–12 (Appointment grade and date of rank) states persons receiving original appointments as Reserve officers of the Army with assignment to the JAGC will be appointed in the highest grade entitled under 10 USC 3359 as follows: (1) Table 3-3 below shows that if granted commission service credit of 3 years or more, but less than 7 years, appointment grade will be first lieutenant. (2) Constructive service credit will be computed and awarded as 3 years credit for award of the first professional law degree, per table 3-4 below. (3) The date of rank of an officer commissioned in the Reserve of the Army and assigned to the JAGC is the date of appointment. The DOR will further be backdated by the period of commissioned service credit awarded under a above. This is in excess of that amount used to establish the officer’s appointment grade. c. Paragraph 3–13 states applications for JAGC Reserve officer appointments must comply with the general requirements of chapter 2, which include a Standard Form (SF) 88 (Report of Medical Examination) and SF 93 (Report of Medical History), and submit additional documents under this chapter. 2. AR 135-155 (Army National Guard and U.S. Army Reserve Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) outlines the time in grade requirements for commissioned officers in the USAR below: It further states that a USAR TPU officer who is considered and selected by a mandatory promotion board will be promoted and transferred from the unit to the IRR. The officer will be promoted within 60 days of receipt of promotion notification or the normal established promotion eligibility date, whichever is later. However, transfer to the IRR will not occur when the officer— a. Fills a vacancy in the unit in a higher grade, or b. Is an authorized position per AR 140-10, and is a JAGC officer assigned to a position up to one grade below the grade to which he/she is promoted. 3. Title 10 (Armed Forces), U.S. Code, §14315 (Position vacancy promotions: Army and Air Force officers) states in subparagraphs: a. For officers eligible for consideration for vacancy promotions below brigadier, a reserve officer of the Army in the Army Reserve, who is on the reserve active-status list in the grade of first lieutenant, captain, major, or lieutenant colonel is eligible for consideration for promotion to the next higher grade under this section if each of the following applies: (1) The officer is occupying or, under regulations prescribed by the Secretary concerned, has been recommended to occupy a position in the same competitive category as the officer and for which a grade higher than the one held by that officer is authorized. (2) The officer is fully qualified to meet all requirements for the position as established by the Secretary of the military department concerned. (3) The officer has held the officer's present grade for the minimum period of service prescribed in section 14303 of this title for eligibility for consideration for promotion to the higher grade. b. Vacancy Promotion Boards.—Consideration for promotion under this section shall be by a vacancy promotion board convened under section 14101(a) of this title , which states that whenever the needs of the Army, Navy, Air Force, or Marine Corps require, the Secretary concerned shall convene a selection board to recommend for promotion to the next higher grade, under this subsection shall be known as a “promotion board.” A promotion board convened to recommend reserve officers of the Army for promotion to fill a position vacancy under this subsection shall be known as a “mandatory promotion board”. However, Paragraph (1) does not require the convening of a selection board in the case of officers in the permanent grade of first lieutenant when the Secretary concerned recommends for promotion to the next higher grade under section 14308(b)(4) of this title. c. Effect of Nonselection.—An officer who is considered for promotion under this section and is not selected shall not be considered to have failed of selection for promotion. d. Special Rule for Officers Failed of Selection.—A reserve officer of the Army or the Air Force who is considered as failed of selection for promotion under this section or, if selected, promoted to that grade only if the Secretary of the military department concerned finds that the officer is the only qualified officer available to fill the vacancy. The Secretary concerned may not delegate the authority under the preceding sentence 4. Title 10, U.S.C., §14303. Eligibility for consideration for promotion: minimum years of service in grade states in subparagraphs— a. Officers in Pay Grades O–1 and O–2.—An officer who is on the reserve active- status list of the Army and holds a permanent appointment in the grade of second lieutenant or first lieutenant as a reserve officer of the Army, may not be promoted to the next higher grade until the officer has completed two years, in the case of an officer holding a permanent appointment in the grade of first lieutenant or lieutenant. b. Officers in Pay Grades O–3 and Above.—Subject to subsection (d), an officer who is on the reserve active-status list of the Army and holds a permanent appointment in a grade above first lieutenant, may not be considered for selection for promotion to the next higher grade until the officer has completed three years, in the case of an officer of the Army holding a permanent appointment in the grade of captain, major, or lieutenant colonel. c. Authority To Lengthen Minimum Period in Grade.—The Secretary concerned may prescribe a period of service in grade for eligibility for promotion, in the case of officers to whom subsection (a) applies, or for eligibility for consideration for promotion, in the case of officers to whom subsection (b) applies, that is longer than the applicable period specified in that subsection. //NOTHING FOLLOWS//