BOARD DATE: 22 May 2020 DOCKET NUMBER: AR20200004822 APPLICANT REQUESTS: * an equitable adjustment of constructive service credit to determine his original appointment grade and date of rank APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * A memorandum from Deputy Staff Judge Advocate (DSJA), U.S. Army Cyber Command (ARCYBER) to Commanding General, ARCYBER, subject: Legal Review of Request for Additional Constructive Service Credit, dated 31 January 2020 * A memorandum from Commanding General, ARCYBER to Commander, Army Human Resources Command (AHRC), subject: Request Equitable Adjustment of Constructive Credit (Applicant), undated FACTS: 1. The applicant's application lists the following additional documents as evidence, which were not available for review: * approved selection board results * Officer Record Brief (ORB). 2. The applicant states he should be awarded fair and equitable constructive service credit commensurate with his actual education and experience. a. Army Directive 2017-26 established the direct appointment policy to appoint Cyber Officers under the Cyber Direct Commissioning Pilot Program (CDCPP) and he volunteered for the opportunity. As one of the first two officers to be appointed under the CDCPP and one of the only two officers appointed in FY2018, his constructive service credit was determined under NDAA [National Defense Authorization Act] 2018. b. NDAA 2018 only allowed constructive service credit to be granted for up to 36 months, which resulted in his appointment as a 1LT, although he would have earned more constructive serve credit if all of his qualifying experience was considered in the calculation. NDAA 2019 later authorized officers to receive greater than 36 months of constructive service credit, which applied all other officers appointed under the CDCPP. 3. The applicant's record contains a DA Form 61 (Application for Appointment), dated 23 March 2018 showing he requested an appointment as a Reserve commissioned officer of the Army in area of concentration (AOC) 17A (Cyber (CY) Operations Officer). This form shows he had prior enlisted service and that he had multiple degrees in information technology and a master's degree in cybersecurity. 4. A memorandum from AHRC, dated 6 April 2018 appointed him as a Reserve commissioned officer of the Army for an indefinite period of time as a second lieutenant in AOC 17A (CY) with a scroll date/rank of second lieutenant as 18 March 2018 and an acceptance date and effective date of 9 April 2018. He executed a DA Form 71 (Oath of Office) on 9 April 2018 confirming his appointment. 5. Orders C-04-804338, issued by AHRC on 10 April 2018 shows the applicant was appointed as a Reserve commissioned officer and assigned to the United States Army Reserve (USAR) Control Group (Reinforcement) effective 9 April 2018 as a second lieutenant in AOC 17A (CY). 6. Order A-04-800594, issued by AHRC on 19 April 2018 ordered him to active duty effective 6 May 2018 for the purpose of attending a direct commission course class at the Judge Advocate General (JAG) School and then, upon completion, assigning him to Fort Gordon, GA to fulfill his active duty requirement in a voluntary indefinite status. An amendment to these orders directed him to attend the direct commission course at Fort Benning, GA instead of the JAG School. 7. Order: 418-115-CY25-1, issued by AHRC on 25 April 2018 appointed him in the Regular Army in the grade of first lieutenant with an effective date on the execution of the oath of office. 8. The applicant executed another DA Form 71 at Fort Benning, GA indicating his appointment as a Regular Army officer on 6 May 2018. 9. A DA Form 1059 (Service School Academic Evaluation Report), dated 9 October 2018, shows the applicant successfully completed the Cyber Basic Officer Leader Course (CyBOLC) from 30 July 2018 through 3 October 2018. 10. Order NO: 238-947, issued by AHRC on 26 August 2019 shows the applicant was promoted to the rank of captain (CPT) with an effective date of rank of 1 September 2019. 11. The applicant is currently serving in the rank of CPT with Cyber Branch, U.S. Army Cyber Protection Brigade, ARCYBER at Fort Gordon, GA. 12. The applicant provides: a. A memorandum from DSJA, ARCYBER to Commanding General, ARCYBER, subject: Legal Review of Request for Additional Constructive Service Credit, dated 31 January 2020 regarding the applicant and other applicable officers within the command (see attachment). (1) The DSJA has no legal objection to the ARCYBER CG requesting the Secretary of the Army’s support in providing additional constructive service credit for the applicant. At the time of his original appointment, he had sufficient experience to qualify for more than three years of constructive service credit; however, he was statutorily barred from receiving more than three years of credit. Since his appointment, the law has changed, and he and the Commandant of the Cyber Center of Excellence (CCoE) have requested retroactive service credit. While retroactive service credit is barred by law, other options for relief exist. On his own accord, he may petition the Army Board for Correction of Military Records (ABCMR) for additional constructive service credit. In addition, the ARCYBER CG may seek a legislative change through Headquarters, Department of the Army (HQDA) to allow for retroactive service credit. Both of these options have a low likelihood of success; however, sending the request to HQDA still has utility. Military personnel policy is a highly-specialized area, so the HQDA G-1 experts are better equipped to assess the feasibility of these options, and to develop other options for relief not considered herein. (2) Law. a. Starting in 2014, Congress authorized the Secretary of Defense to grant, upon original appointment, additional constructive service credit for commissioned officers with cyberspace-related experience or advanced education. Section 502 of the NDAA for Fiscal Year (FY) 2014 amended Title 10 to authorize granting this credit to applicable regular commissioned officers. Section 512 of the NDAA for FY 2018 amended Title 10 to provide the same authority for reserve commissioned officers. b. These grants of service credit were contingent on certain conditions. The Secretary of Defense had to authorize the grant in regulation, and the Military Department Secretaries had to determine that there was a critical need for officers with cyberspace-related experience or advanced education. Service credit was capped at no more than three years for reserve and regular commissioned officers. c. In 2018, Congress repealed this special authority in the NDAA for FY 2019. In its place, Congress authorized a broader service credit that was not tied to cyberspace-related experience or education. In addition, Congress raised the ceiling from no more than three years of service credit to an amount not to exceed that which is required for an officer to be eligible for original appointment in the grade of O-6. (3) Facts. a. (Applicant) was the only one of two individuals commissioned as cyber officers under the Cyber Specialty Direct Commissioning Pilot Program in FY 2018. Based on his cyber-related experience and education, he qualified for 86 months of constructive service. Because he was commissioned on 6 May 2018, he was limited to constructive service credit of not more than 36 months under the rules in Title 10 effective at that time. Consequently, he was ineligible for an additional 50 months of constructive service credit. b. He and the CCoE Commandant have requested that he receive retroactive service credit under the broader grant found in the NDAA for FY 2019. The Commandant regards the capping of service credit for him as inequitable because other officers commissioned shortly after him qualified for more constructive service credit. (4) Analysis. a. Unless explicit in the statutory text itself, statutes are presumed to be non- retroactive. "As a general, almost invariable, rule, a legislature makes law for the future, not the past." Reading Law: The Interpretation of Legal Texts, page 261, Antonin Scalia and Bryan A. Garner. The NDAA for FY 2019 is silent as to retroactive service credit, and, consequently, it is presumed to be non-retroactive. The Secretary of Defense’s implementing regulation for this statute supports this presumption. Department of Defense Instruction (DoDI) 1312.03, Entry Grade Credit for Commissioned Officers and Warrant Officers, dated 28 December 2018, sets forth the procedures and rules for determining entry grade and service credit in the military. DoDI 1312.03 does not mention retroactivity nor does it establish any procedures for retroactive service credit. Instead, constructive service credit is explicitly tied to entry onto service. "Constructive service credit is awarded when commissioned service begins…" DoDI 1312.03, paragraph 3.4. The same absence of policy for retroactive service credit applies for the Army. The Secretary of the Army provides no rules nor process for retroactive service credit in Army Directive 2019-27 (Direct Appointment of Officers Up to the Grade of Colonel (Other Than Special Branches)), and the Army Directive explicitly states that Army policy follows the rules in both Title 10 and the DoDI 1312.03. b. In addition to the presumption against retroactivity, the statutory text itself precludes retroactivity. According to the Deputy Director for the CCoE, he was scrolled, received appointment in the Reserve component to travel to initial entry training and also in the Regular Army at a higher-rank based on his constructive service credit. For Regular commissioned officers, constructive service credit can only be awarded at the time of the original appointment. "Constructive service credited an officer…shall be credited at the time of the original appointment of the officer" 10 U.S.C. § 533(b)(3). Providing additional service credit after the time of original appointment falls outside of the authority found in Title 10. (5) Alternative options. While retroactive application of the NDAA is barred, two other options may provide relief: petitioning the ABCMR and seeking legislative changes. a. (Applicant) can petition the ABCMR to correct his service record. This is the board appointed by the Secretary of the Army to exercise his statutory authority to correct any military record based on an injustice. Title 10 U.S.C. § 1552 and Army Regulation 15-185 (Army Board for Correction of Military Records). Unlike the legislative option which requires high-level support, he may file an ABCMR request himself, and can receive legal assistance on filing the petition from the Fort Gordon Office of the Staff Judge Advocate (OSJA). Relief at the ABCMR is unlikely. While the word injustice is undefined in both the statute and regulation, an injustice is normally tied to a violation of an individual’s rights. Here, there was no violation of rights; the officers received all the constructive service credit due to them at the time of their original appointment. b. A statutory change could also provide relief to him. A private bill (a law that provides benefits to specified individuals) would normally be the remedy for this type of situation; however, Rule XII for the Rules for the House of Representatives precludes receipt or consideration of private bills for the correction of military records. Thus, a private bill to change the military records of an officer to receive more service credit could not be heard in the House of Representatives. In lieu of a private bill, the Secretary of the Army could seek to have additional constructive service credit be retroactively granted in the next NDAA or in another public law. While this would lift the statutory bar and overcome the presumption against retroactivity, such a provision could have unforeseen consequences. If not narrowly tailored, a retroactive constructive service credit could provide additional service credit to a larger class of officers than intended. As a result, this option may not be feasible. c. Notwithstanding the problems with these options, sending the request to HQDA G-1 still has utility. Military personnel policy is a niche area, and one in which few OSJAs have experience. HQDA G-1 is better equipped to assess the feasibility of these options, and to develop other options for relief not considered above. b. An undated memorandum from Commanding General, ARCYBER to Commander, AHRC, subject: Request Equitable Adjustment of Constructive Credit (Applicant), wherein he requests approval for the applicant to receive adjustment for constructive service credit for his cyber-related experience and education prior to his direct commissioning. (1) He was one of two individuals commissioned as Cyber officers under the Cyber Specialty Direct Commissioning Pilot Program in FY 2018. Based on his cyber- related experience and education, he qualified for 86 months of constructive service. Because he was commissioned on 6 May 2018, he was limited to constructive service credit of not more than 36 months under the rules in Title 10 effective at that time. Consequently, he was ineligible for an additional 50 months of constructive service credit. (2) The NDAA for FY 2019 authorized officers to receive greater than 36 months of constructive service credit. Officers that were commissioned after implementation of NDOAA 2019 have received full constructive credit. (3) He has served admirably and deserves to receive full constructive service credit per the NDAA 2019 passage. With the approval of credit adjustment, he will be eligible for promotion to Major which will increase the command's ability to provide senior level cyber support to the Army. (4) ARCYBER strongly recommend he receive and equitable adjustment to his constructive service credit. This action will positively impact him personally and professionally by showing he is equally valuable to the Army as those that were commissioned under new rules. Additionally, this will meet the intent of the Secretary of the Army's decision to approve the constructive credit for officers with special cyber skills. 13. In connection with the processing of this case, the Board received an email, dated 5 May 2020, from the Branch Chief, Information Dominance (Cyber Branch), AHRC in response to ARCYBER inquiry that opined the concurrence with the constructive credit nomination as outlined from ARCYBER for the applicant. 14. Army Directive 2107-26 (Pilot Program for Direct Commission to Cyber Positions), dated 27 October 2017 was superseded by Army Directive 2019-27 (Direct Appointment of Officers to the Grade of Colonel (Other Than Special Branches)), dated 12 September 2019, which establishes policy for the direct appointment of officers up to the grade of colonel (see references). 15. Department of Defense Instruction (DoDI) 1312.03 (Entry Grade Credit for Commissioned Officers and Warrant Officers), dated 28 December 2018 establishes policy, assigns responsibility, and details procedures governing the award of entry grade credit to persons receiving original appointments as regular or reserve commissioned officers or warrant officers. Constructive service credit will only be used to determine initial grade, rank in grade, and service in grade for promotion eligibility. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board agreed that the amount of constructive service credit given to the applicant was inequitable in light of the subsequent statutory change that allows similarly situated officers to receive more constructive service credit upon appointment. By a preponderance of the evidence, the Board determined the applicant's record should be corrected to show he received constructive service credit equivalent to what he would have been eligible to receive under the relevant provisions of the FY 2019 NDAA as implemented in DoDI 1312.03, dated 28 December 2018. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing that, at the time of his appointment under the Cyber Specialty Direct Commissioning Pilot Program, he received constructive service credit equivalent to what he would have been eligible to receive under the relevant provisions of the Fiscal Year 2019 National Defense Authorization Act as implemented in Department of Defense Instruction 1312.03, dated 28 December 2018. 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. National Defense Authorization Act (NDAA) for Fiscal Year 2018, dated 9 November 2017, prescribed in Section 512 - Service Credit for Cyberspace Experience or Advanced Education upon Original Appointment as a Commissioned Officer. a. Under regulations prescribed by the Secretary of Defense, if the Secretary of a military department determines that the number of commissioned officers with cyberspace-related experience or advanced education in reserve active-status in an armed force under the jurisdiction of such Secretary is critically below the number needed, such Secretary may credit any person receiving an original appointment as a reserve commissioned officer with a period of constructive service for the following: (1) Special experience or training in a particular cyberspace-related field if such experience or training is directly related to the operational needs of the armed force concerned. (2) Any period of advanced education in a cyberspace-related field beyond the baccalaureate degree level if such advanced education is directly related to the operational needs of the armed force concerned. b. Constructive service credited an officer under this subsection shall not exceed one year for each year of special experience, training, or advanced education, and not more than three years total constructive service may be credited. c. Constructive service credited an officer under this subsection is in addition to any service credited that officer under subsection (a) and shall be credited at the time of the original appointment of the officer. d. The authority to award constructive service credit under this subsection expires on December 31, 2023. 2. NDAA for Fiscal Year 2019, dated 3 January 2018, prescribed in Section 502 - Enhancement of Availability of Constructive Service Credit for Private Sector Training or Experience upon Original Appointment as a Commissioned Officer. a. Additional credit for special training or experience in a particular officer career field as designed by the Secretary concerned, is such training or experience is directly related to operational needs of the armed force concerned. b. The amount of constructive service credit credited to an officer under this subsection may not exceed the amount required in order for the officer to be eligible for an original appointment in the Army, Air Force, or Marine Corps in the grade of colonel or captain in the Navy. 3. Department of Defense Instruction (DoDI) 1312.03 (Entry Grade Credit for Commissioned Officers and Warrant Officers), dated 28 December 2018 establishes policy, assigns responsibility, and details procedures governing the award of entry grade credit to persons receiving original appointments as regular or reserve commissioned officers or warrant officers. a. The amount of entry grade credit awarded to any person appointed, assigned, or designated as a commissioned officer will be equitably determined. b. The award of entry grade credit will be used to establish an appropriate original appointment grade and date of rank relative to other officers in the same competitive category receiving an original appointment. c. Graduates of the Service academies and Reserve Officers’ Training Corps are not entitled to receive entry grade credit for service performed or education, training, or experience obtained before graduation. d. Paragraph 3.4 prescribes constructive service credit is awarded when commissioned service begins after the additional education, training, or experience required for appointment, designation, or assignment in a professional specialty or a specifically designated field is obtained. Constructive service credit provides a person the grade and date of rank comparable to a contemporary who began commissioned service immediately after obtaining a baccalaureate degree. (1) Constructive service credit will only be used to determine initial grade, rank in grade, and service in grade for promotion eligibility. (2) Constructive service credit awarded under this paragraph will be determined in accordance with these guidelines: a. 1 year of constructive service credit will be awarded for each year of graduate level education to persons appointed, designated, or assigned in an officer category that requires such advanced education or an advanced degree as a prerequisite for appointment. The amount of credit awarded will not exceed the number of years the majority of institutions that award degrees in that field require for completion of the advanced education or award of the advanced degree. b. Additional day-for-day credit not to exceed 1 year may be awarded for internships or equivalent graduate-level formal professional training required by the Military Service concerned for the professional specialty in which the person is being appointed, designated, or assigned. c. Additional day-for-day credit not to exceed 1 year may be awarded for each additional year of graduate-level training or experience required for certification in a specialty required by the Military Service concerned. d. Additional credit for special training or experience in a particular officer career field as designated by the Secretaries of the Military Departments, if such training or experience is directly related to the operational needs of the officer’s Military Service. e. A period of time will be counted only once when calculating constructive service credit. f. Qualifying periods of less than 1 year will be proportionally credited. g. Creditable experience cannot predate the receipt of a degree or certificate; experience gained in a volunteer or student status will not be credited. h. Periods of time spent as a commissioned officer on active duty or in an active status may not be counted when calculating constructive service credit. However, the Secretaries of the Military Departments may waive this restriction and award constructive service credit to an officer who completes advanced education or receives an additional degree while on active duty or in an active status if, pursuant to Sections 533 and 12207 of Title 10, U.S.C.: (i) Such education or advanced degree is required as a prerequisite for appointment, designation, or assignment as a commissioned officer in a particular professional specialty; and (ii) The officer completes the advanced education or receives the advanced degree in less than the number of years normally required to do so. (iii) The amount of constructive service credit that may be awarded to an officer who qualifies for a waiver of this restriction is limited to the difference between: * The number of years normally required to complete the educational program or degree; and, * The number of years in which the program or degree was completed by the officer. 4. Army Directive 2017-26 (Pilot Program for Direct Commission to Cyber Positions), dated 27 October 2017 was superseded by Army Directive 2019-27 (Direct Appointment of Officers to the Grade of Colonel (Other Than Special Branches)), dated 12 September 2019, which establishes policy for the direct appointment of officers up to the grade of colonel. This directive supersedes relevant provisions in Army directives; Army regulations; and Deputy Chief of Staff, G-1 entry grade credit guidance that control direct appointments for officers. a. Entry Grade Credit. (1) A person’s entry grade, date of rank, and service in grade for promotion eligibility will be determined by the amount of entry grade credit awarded upon original appointment. The amount of entry grade credit will equal the sum of the prior commissioned service credit and the constructive service credit granted. (2) Credit will be awarded pursuant to Title 10, U.S. Code, sections 533 and 12207 (10 U.S.C. §§ 533 and 12207) and DoD Instruction 1312.03 (Entry Grade Credit for Commissioned Officers and Warrant Officers). (3) A period of time will be counted only once when calculating entry grade credit. (4) Qualifying periods of less than 1 full year will be proportionally credited to the nearest day. (5) Prior commissioned service credit will be calculated before constructive service credit. b. Entry Grade and Promotion Phase Points. (1) A person granted entry grade credit in accordance with this directive and placed on the active duty list or reserve active status list will have an entry grade determined by comparing entry grade credit with the appropriate promotion phase-in points of the competitive category concerned. (2) Credit awarded that exceeds the amount used to establish the entry grade will be used to adjust the date of rank. c. Constructive Service Credit. Constructive service credit is awarded when commissioned service begins after the additional education, training, or experience required for appointment, designation, or assignment in a professional specialty or a specifically designated field is obtained. Constructive service credit provides a person the grade and date of rank comparable to a contemporary who began commissioned service immediately after obtaining a bachelor’s degree. Constructive service credit will be granted pursuant to guidance in DoD Instruction 1312.03, paragraph 3.4. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200004822 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1