ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 28 January 2020 DOCKET NUMBER: AR20190013095 APPLICANT REQUESTS: * By federal court remand, the applicant in effect requests that his three (3) years in law school to qualify for a commission as a Judge Advocate General Corps officer be removed from his mandatory removal date (MRD) calculation based on the provisions of Title 10, United States Code, section 14706 (10 USC 14706), adjusting his current MRD from 1 June 2016 to 1 June 2019. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * Court of Federal Claims Remand filed 12 September 2019 * Supplemental Brief, dated 15 November 2019, which includes 12 exhibits, submitted by the applicant’s legal counsel Exhibit 1: September 4, 1992, Certificate of Release or Discharge from Active Duty Exhibit 2: Law School Transcript for the Applicant Exhibit 3: Declaration of GR Exhibit 4: Declaration of FJB Exhibit 5: August 23, 1995 Orders to Active Duty Exhibit 6: Louisiana State Bar Attorney Profile Exhibit 7: May 31, 2016, Certificate of Release or Discharge from Active Duty Exhibit 8: PowerPoint Presentation on MRD Exhibit 9: Unsworn Declaration from the applicant Exhibit 10: House Committee Report 106-162 Exhibit 11: Senate Committee Report 106-50 Exhibit 12: Regular Army and Army Reserve JAG Corps Requirements webpages from https://www.goarmy.com/jag/about.html * Letter of Rebuttal to Advisory Opinion from the Human Resource Command, dated 17 December 2019, containing 2 exhibits, submitted by the applicant’s legal counsel Exhibit 1: Court of Federal Claims Remand filed 12 September 2019 Exhibit 2: PowerPoint Presentation on MRD FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20130007920 on 20 August 2013, and AR20160003490 on 21 July 2016. 2. The applicant’s records show: * 27 May 1988 – he was commissioned as a second lieutenant in the U. S. Army Reserve (USAR), Transportation Corps (TC) * 18 January 1989 to 4 September 1992 – he served on active duty * 4 September 1992 - transferred from active duty to the USAR Control Group * 4 October 1992 to 29 September 1995 – he was a drilling USAR TC officer in the 1190 Transportation Corps United States Army Deployment Control Unit as an Assistant Movement Officer * 1 September 1992 to 27 May 1995 - he was a full time student in the Law School at a State University as a civilian not under military orders, military funding, or a military education program; he received his juris doctor degree on 27 May 1995 * 17 January 1995 – he applied for an appointment as a JAGC officer contingent on receiving his juris doctor degree from his civilian education and passing the bar exam * 22 August 1995 - he was appointed as a Reserve commissioned officer of the Army in the Judge Advocate General Corps (JAGC) * 23 August 1995 - he was ordered to active duty on 30 September 1995 as a USAR officer with duty enroute to attend the JAGC School for the JAGC basis officer’s course which he completed on 21 December 1995; after which reported to the 10th Mountain Division * 30 September 1995 to 1 July 2003 - he served on active duty as a USAR officer after which he was transferred to USAR troop program unit * 9 May 2004 to 31 May 2016 – he served as an active guard reserve (AGR) officer * 31 May 2016 – he was retired due to reaching the MRD of 28 years of Reserve service at the rank of Lieutenant Colonel not selected for promotion in accordance with 10 USC 14507a 2. The applicant contends that his MRD of 28 years includes 3 years during which he was in law school as a civilian and that those 3 years should be removed from the MRD calculation in accordance with 10 USC 14706 (computation of total ears of service) changing his MRD from 31 May 2016 to 31 May 2019. 3. In pertinent part, 14706 states: (a) For the purpose of this chapter…, a Reserve officer's years of service include all service of the officer as a commissioned officer of a uniformed service other than [except] the following: (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 [that] 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. [Brackets show text added for clarity.] 4. The applicant contends that his 3 years as a civilian law student was a program of advanced education to obtain his juris doctor degree to then be appointed as a JAGC officer and therefore should be subtracted from his MRD. 5. On the AHRC Form 871 (Mandatory Removal Date (MRD) Computation) previously provided to this Board by the applicant, he entered on line 3 entitled “Educational Delay (JAG/AMEDD/CH)” the 3 years he contends should be subtracted from his MRD. The only other line for subtracting time from the MRD is line 2 entitle “Breaks in Service.” Line 3 has an asterisk that refers to a note at the bottom of the form which states, “Check with Career Manager to see if educational delay law of Title 10 USC Section 14706 applies.” Thus, 10 USC 14706 addresses “educational delay.” It is noted that the current online MRD calculator on the U. S. Army Human Resources Command (HRC) website https://www.hrcapps.army.mil/shared/mrdcalc/mrdcalc.aspor quotes 10 USC 14706 as the definition of “Educational Delay” that can be subtracted from the MRD. 6. Educational Delay, as defined by 10 USC 14706 text “a program of advanced education to obtain the first professional degree required for [that] appointment” is governed by Army Regulation 601-25 which states in table 2-1 that a Reserve commissioned officer can request to attend law school for a Doctor of Laws degree for a period of 3 years. To qualify for this advanced education program delay, the officer must submit a DA Form 571. Paragraph 2-5a(4) states that for a JAG officer, the DA Form 571 must be submitted to The Judge Advocate General (TJAG) for approval. When approved, the TJAG sends it to HRC who will issue to the officer instructions and orders for the advanced education program. There is no evidence of record that the applicant submitted the required DA Form 571, nor was he approved by the TJAG for advanced educational program to qualify for a JAGC specialty, nor was he issued any orders placing him on a student status in an advanced educational program. 7. Department of the Army (DA), Office of the Chief of Staff for Personnel, issued a memorandum on 15 December 2000 addressing computation of years of service exclusion for professional specialty branch officers. a. Paragraph 3 states, “10 U.S.C. § 14706 does not allow exclusion [from MRD] of service performed by officers serving … in the Ready Reserve while independently pursuing graduate level studies.” b. The enclosure to the memorandum states that officers who independently pursue graduate level studies while in a Ready Reserve status are not in a recognized student status and that period of time may not be excluded from the MRD. c. Paragraph 3 further states, “Student service performed by officers who simultaneously serve in Selected Reserve troop program units while in student status … may not be excluded [from the MRD].” 8. Title 10 USC 14706 (b) refers to the “status” of a Soldier while being in a program of advanced education to obtain the first professional degree required for appointment qualifying for exclusion of the time from the MRD calculation as due to being in a “student status.” This “student status” refers to a military student status (in school on military orders or in a military training program), not a civilian student status. A military student status refers to officers appointed to a medical or ministerial specialty and authorized on military orders for advanced education to obtain the first professional degree required for their appointment to the medical or ministerial professional specialty. Further, subparagraph (b) last five words further clarifies this in that it specifies “service in a student status” indicating military service in a military student status, not a civilian student status which is not classified as “service.” 9. The applicant contends that his civilian student status qualifies for 10 USC 14706 exclusion because it was recorded by his Reserve unit on DA Forms 3725 as the applicant being in a student status. The applicant presented affidavits from members of his Reserve unit during 1992-1995 while he was attending civilian law school stating they listed him as being in “student status” on a DA Form 3725 (Army Reserve Status and Address Verification) according to Army Regulation (AR) 135-33. The affidavits misstate the regulation number; the correct regulation is AR 135-133 (Ready Reserve Screening, Qualification Records System, Change of Address) which governs DA Form 3725. On the DA Form 3725, there is no data field showing “student status”, civilian or military. The form records address, changes of address, marital status, employment in key civilian positions, hardship that would be caused by active duty, ministerial students or ministry or religious obligations, and physical condition. The form states that it is used to determine the Soldier’s Reserve status as to whether they should be transferred to the standby Reserve, retired Reserve or discharged. The DA Form 3725 did not assign a military student status for the applicant. It is understandable though that the unit would want to keep track of which of its Reserve members were in civilian schooling which may affect the units readiness and deployability. 10. In 2013, the Human Resources Command Leader Development Division Chief stated that the applicant was commissioned on 27 May 1988 and served on active duty from 1989 to 1992. From 1992 to 1995, the applicant pursued a law degree. During that time, the applicant continued to be an active participant in the Army Reserve and earned qualifying years for retirement. The applicant did not request to have an educational delay to attend civilian law school nor was he approved for such by TJAG in accordance with AR 601-25 and he continued to earn qualifying years for retirement drilling with his Reserve unit. Therefore, there was no basis for an adjustment to his MRD by excluding the years he attended civilian law school since he received credit during that time as a drilling Reservist. This is confirmed by the DA memorandum referenced in paragraph 7a above, “10 U.S.C. § 14706 does not allow exclusion [from MRD] of service performed by officers serving on … in the Ready Reserve while independently pursuing graduate level studies.” 11. On 26 November 2019, the HRC Officer Retirements and Separations Branch Chief provided and advisory opinion that the applicant was an active member of the United States Army Reserve (USAR) during the time he was in civilian law school. He received membership, inactive duty for training, and active duty retirement points during that time as a USAR drilling Reserve officer receiving 3 good years towards retirement. Consequently, HRC found no basis to delete the 3 years from the applicant’s MRD. This is also consistent with the DA memorandum referenced in paragraph 7a above, “10 U.S.C. § 14706 does not allow exclusion [from MRD] of service performed by officers serving on … in the Ready Reserve while independently pursuing graduate level studies.” The applicant was provided this advisory for ex parte response. 12. The applicant responded requesting that this Board not adopt HRC’s advisory. He contends the advisory is arbitrary and capricious and does not address the issue or all the evidence presented. He contended that, with respect to his MRD, the HRC advisory opinion addressed his service prior to law school rather than his service while he attended civilian law school which is the issue under review. The HRC advisory opinion paragraph 2a addresses the applicant’s service prior to the period of service in question while he was in civilian law school. Paragraph 2b addresses the question of the applicant’s service while he was in civilian law school. The advisory addresses the issue of the applicant’s MRD credit while he was in civilian law school consistent with the DA memorandum referenced paragraph 7a above, “10 U.S.C. § 14706 does not allow exclusion [from MRD] of service performed by officers serving on … in the Ready Reserve while independently pursuing graduate level studies.” 13. The applicant in his ex parte rebuttal provided a copy of the court remand document that is the basis of the case and a copy of briefing slides on MRD calculations previously provided as exhibit 8 in the court remand supplemental brief packet. The United States Army Reserve Command (USARC) was contacted and they confirmed that it is an authentic briefing though no longer used. 14. The MRD briefing provided by the applicant, slide 2 (Creditable and Noncreditable Service), paraphrases 10 USC 14706: “Commissioned service is defined as “Service as a commissioned officer that includes active status or active service as provided for in section 14706 of Title 10: The only exception to this rule is based in Title 10 section 14706(a)(3) which excludes time a commissioned officer spends while in an advanced education program for appointment in a special branch. Section 14706(b) goes on to explain that the officer’s Reserve commissioned service prior to entering the advanced education program becomes qualified in a special branch does count toward years of commissioned service for MRD purposes.” 15. The text on this slide regarding section14706(a) does not contain the complete statutory language and leaves out the last important phrase from the law, specifically “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.” As such, the slide is incomplete in that it does not address all relevant aspects of the statute. The last phrase defines the service to be excluded from the MRD, “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.” The applicant’s “initial service” after commissioning from ROTC was as a Transportation Corps officer from 18 January 1989 to 4 September 1992. His “initial service” was not as a JAGC officer. His service after appointment as a JAGC officer in 1995 was “after” his “initial service” on active duty and was a continuation of his Reserve officer service, not his initial service. His appointment as a JAGC did not create a break in service and a new period of service. 16. The court asked the ABCMR to review and consider the following: a. Whether 10 USC 14706 differentiates between USAR officers on "active" or "inactive" status. (1) Subparagraph (3) shows that 10 USC 14706 applies to USAR officers in both initial service on “active” duty (active status) or initial service in the “Ready Reserve” (which is “inactive” status). AR 140-10 states that the Ready Reserves consists of USAR Soldiers assigned to Troop Program Units (TPU) which are drilling Reserve units and to USAR control groups such as the Individual Ready Reserve (IRR) and Reinforcement control group. Soldiers in the Ready Reserve are in an “inactive” duty status. The TPU training drills are called “Inactive” Duty for Training (IADT). (2) The applicant was a USAR officer commissioned from ROTC and ordered to active duty (active status) in the Active Army for three years. When he was released from active duty in the Active Army, he was transferred to the USAR Control Group (Reinforcement) which is part of the Ready Reserve (inactive status). He was subsequently transferred from the USAR Control Group (Reinforcement) to a TPU (inactive status), 1190 Transportation Corps United States Army Deployment Control Unit where he served as a Transportation Corps Assistant Movement Officer from 4 October 1992 to 29 September 1995. During this this time, his records show that he participated in 135 “inactive” duty for training (IADT) drills for which he received retirement points toward his Reserve retirement. It was during this time that he also independently attended law school as a civilian. b. The applicability of AR 140-10 (Army Reserve: Assignments, Attachments, Details, and Transfers) and AR 140-185 (Training and Retirement Point Credits and Unit Level Strength Accounting Records) to the facts of the applicant’s claim. (1) AR 140-10 governs, among other things, the calculation of the MRD. Paragraph 7-2 states the text of 10 USC 14706. Paragraph 7-2 does not support the applicant’s claim as outlined in subparagraphs of this paragraph 16 and elsewhere throughout this document. (2) AR 140-185 governs recording of retirement point credits and training. During the time while the applicant was in civilian law school, he was a drilling member of a Reserve TPU. In accordance with AR 140-185, during this time he received Inactive Duty Points, Active Duty Points, and Membership Points for attending IADT (drill) and Active Duty for Training (ADT) or Active Duty sufficient to achieve one qualifying (good) year toward retirement for each year (159 points during 19920527-19930526, 70 points during 19930527-19940526, 79 points during 19940527-19950526, and 270 points during 19950527-19960526, which included the time he was on active duty starting on 19950930). These years counted toward his MRD. Because he received retirement point credit and good years, which are part of this MRD calculation during the time he was in civilian law school, this is further reason why his civilian time in law school is not subtracted from this MRD. c. A more detailed explanation as to whether the applicant would have needed a new "original appointment" for the exclusion contained in 10 USC 14706(a)(3) to apply to his service records in light of 10 USC 101. (1) 10 USC 101 is entitled “Definitions” referring to definitions of Organization and General Military Powers. Subparagraph b(10) states that the term "original", with respect to the appointment of a member of the armed forces in a regular or Reserve component, refers to that member's most recent appointment in that component that is neither a promotion nor a demotion. (2) The applicant’s “original” commission was in 1988 from ROTC as a USAR officer and appointed as a Transportation Corps (TC) officer. He continued as a commissioned USAR office uninterrupted from 1988 to 2016 and remains a USAR officer on the Reserve Retired List. After his original commissioned, he was subsequently appointed as a JAGC officer without break in service. The appointment to the JAGC specialty was not his original commission and appointment in the USAR. (3) 10 USC 14706 does not use the term “original.” (4) The issue of whether the applicant would have needed a new “original appointment” is not the dispositive question. If the applicant had resigned his original commission and appointment creating a break in service, and then applied for a new commission and appointment as a JAGC officer and applied for delayed entry from this commission – i.e., not earning qualifying years for – to attend an advanced education program to qualify for the JAGC appointment, and not participated in TPU drill while in civilian law school, said time may have meet the requirements of 10 USC 14706 for subtraction from his MRD. However, the applicant did not resign his first commission nor was it terminated. He did not have any break in service. He continued to be an active participant in the USAR and earn qualifying points for retirement. d. Whether 10 USC 14706(b) bars the applicant’s claim that his MRD should be adjusted. (1) 10 USC 14706(b) states, “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.” (2) This provision states that service on active duty or in the Ready Reserve as an officer prior to the period of service addressed in subsection (a)(3) is NOT excluded from the MRD calculation and would therefore not be subtracted from the MRD. The applicant’s active duty and Ready Reserve time prior to his civilian law school accordingly was not subtracted from his MRD. e. A more detailed explanation as to why 10 USC 14706(a)(3) does not apply to the applicant’s service record. (1) 10 USC 14703(a)(3) states that service to be excluded (subtracted) from a USAR officers years of service is 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. (2) The applicant attended civilian law school was after his initial service on active duty and in the Ready Reserve as a commissioned USAR officer, not before. His service in the JAGC specialty was after he had completed initial service both on active duty and in the Ready Reserve. (3) The applicant was not in a military service status for attendance at civilian law school nor was he on military orders for attendance at civilian law school. His service during that period was as a drilling USAR officer in a TPU in an inactive duty status, not related to his civilian law school. Therefore, (a)(3) does not apply to the applicant. (4) There is not documentation that the applicant applied for a military service status to attend civilian law school in accordance with regulation nor are there any military orders assigning him to a military service status for attendance at a civilian law school. (5) The Director of Military Personnel Management, Office of the Chief of Staff for Personnel, DA issued a memorandum on 15 December 2000, stating that: (a) An officer who independently pursues graduate level studies while in a Ready Reserve status IN NOT in a recognized student status. (b) 10 USC 14706 does not allow exclusion of service performed by officers serving in the Ready Reserve while independently pursuing graduate level studies. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found relief was not warranted. 2. The applicant requests the three years he spent in law school to be waived/removed from his mandatory removal date (MRD) calculation, adjusting the MRD from 1 June 2016 to 1 June 2019. The Board considered the applicant’s contentions and the evidence in light of Title 10, U.S.C., section 14706 and determined a preponderance of the evidence did not support granting relief. The Board noted that the applicant was commissioned as an officer in 1988 and served on active duty from 1989 to 1992. In September 1992, he transferred from active duty to the USAR. He drilled as a USAR officer from 1992 to 1995, and received qualifying points for retirement. At the same time, he was also independently attending law school. He did not request nor was he approved for advanced education delay and was not on military orders to attend law school. As such, the Board determined that the applicant’s service in the USAR while attending law school after his original active service as a commissioned officer and prior to his commission as a JAGC officer was properly included when calculating his MRD. As a consequence, there was no error in the assigned 1 June 2016 MRD. The Board further found that relief was not otherwise warranted on equitable grounds. The three years the applicant served in the USAR while attending law school are included in calculation of his non-regular retirement. Finally, the Board noted the secondary, potentially negative, effects for the applicant of recalculating the applicant’s dates of rank and pay from 1995 through 2016 that would be triggered by adjusting the applicant’s MRD. 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 CHAIRPERSON REFERENCES: 1. Title 10, USC, section 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. (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) 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) 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 judge advocate. 2. Army Regulation (AR) 140-10 (Army Reserve: Assignments, Attachments, Details, and Transfers), paragraph 7-2 (Length of service (removal rule 1): d. When computing 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 WO. (2) Constructive service. (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 AD or initial service in the Ready Reserve in the specialty that results from such a degree. (4) The exclusion under subsection (d)(3) does not apply to service performed by an officer who previously served on AD 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. (5) For purposes of subsection (d)(3), an officer will be considered to be in a professional specialty if the officer is appointed or assigned to the Medical Corp, the Dental Corp, the VC, the Medical Service Corps, the Nurse Corps, or the Army Medical Specialists Corps or is designated as a CH or JA. 3. AR 601-25 (Delay in Reporting for and Exemption from Active Duty, Initial Active Duty for Training, and Reserve Forces Duty): Table 2-1 (Reasons for Delay in Entry on AD (Active Duty) / IADT (Initial Active Duty for Training / RFD (Reserve Forces Duty)) Rule 4, If the member is an ROTC officer (ROTC commission) and the reason for delay is to pursue a degree in law (Bachelor of Law or Doctor of Law), the officer must submit a DA Form 591 and appropriate DA Form 591a-f for a maximum of 36 months. 4. Memorandum, Department of the Army (DA), Director of Military Personnel Management, Office of the Chief of Staff for Personnel, 15 December 2000, subject: Computation of Years of Service Exclusion for Professional Specialty Branch Officers. a. Paragraph 3 states: As amended, 10 U.S.C. § 14706 provides for exclusion of service performed in a student status while in an army program related to advanced education to obtain the first professional degree required for appointment, designation, or assignment to a professional specialty. 10 U.S.C. § 14706 does not allow exclusion of service performed by officers serving on active duty or in the Ready Reserve while independently pursuing graduate level studies. b. The enclosure states that an officer who independently pursues graduate level studies while in a Ready Reserve status in not in a recognized student status. c. The Judge Advocate General of the Army reviewed this memorandum and found no legal errors. //NOTHING FOLLOWS//