IN THE CASE OF: BOARD DATE: 10 March 2022 DOCKET NUMBER: AR20210007392 APPLICANT REQUESTS: an adjustment of her date of rank (DOR) to major (MAJ) to 2017 or earlier. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) signature page * Applicant’s Request and Statement memorandum * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Special Orders (SO) Number 93 AR * Application for Appointment * Appointment Application memorandum * Appointment memorandum * Orders Number 097-048, C-09-112623, and C-02-402549 FACTS: 1. The applicant states: a. This memorandum serves as a request to have her DOR adjusted. Specifically, she is requesting approximately anywhere from 1 to 3 years be added to her current time in grade (TIG) as a MAJ. Her current DOR for MAJ is 21 June 2018. She is requesting this now, because she was advised by an S1 Officer to wait until she was promoted to MAJ and served a couple years as a MAJ before making the present request. She has enclosed documentation to support her assertions as well as to assist with this request. b. As background, she originally commissioned (Reserve Officers’ Training Corps) in December 2003 as a Regular Army (RA) second lieutenant into the Signal Corps. She served on active duty from 2004 through 2008. In March 2007, she was promoted to captain (CPT). Immediately upon her honorable discharge from active duty in 2008, she joined the Florida Army National Guard (FLARNG) as a Signal Officer and remained there until mid-2009. In May of 2009, she was again honorably discharged from the FLARNG with orders indicating she was to be transferred into the Individual Ready Reserve (IRR). Unfortunately, and unbeknownst to her until last year, her transfer into the IRR was never completed. Subsequently, in July 2011, she joined the U. S. Army Reserve (USAR) as a Signal Officer. In February of 2014, she was appointed into the Judge Advocate General's (JAG) Corps, and given a May 2012 DOR for CPT. c. Consequently, she lost 5 years TIG as a CPT during her transition from the Signal Corps to the JAG Corps. When she was initially informed of her selection to the JAG Corps in 2013, it was explained that her transition from the Signal Corps to the JAG Corps would not be a Branch Transfer, but rather a new commission. She was told that she would lose some TIG as a CPT, but was assured it would not be more than 3 years. Following this discussion, she returned the required JAG Commission paperwork and received a JA Appointment Memorandum, dated 4 December 2013. At the end of the process, and after she had already accepted the JA Appointment, she was informed that she would lose 5 years TIG (Memorandum, dated 29 January 2014). She relied on the assurances she would lose no more than 3 years TIG as a CPT during the transition to the JAG Corps when she accepted the JA Appointment. d. Upon hearing this bad news, she was confused about the calculation and expressed reluctance to accept these new terms. However, since she had already been appointed into the JAG Corps, the only way she could return to the Signal Corps was if she wrote a letter requesting a DOR adjustment to the Commanding General of the JAG Corps (Lieutenant General D_.) requesting release from the JAG Corps and her reasons for the request. As a result of these requirements, with no guarantee she would be transferred back into the Signal Corps, she reluctantly continued on with the JAG Corps with the hope of gaining at least 2 years TIG back once she was promoted to MAJ. Consequently, she was appointed into the JAG Corps on 2 February 2014, after receiving the 29 January 2014 memorandum advising that she would lose 5 years TIG. e. Because she was not transferred into the IRR for essentially 2 years, and the fact her DA Form 5016 (Chronological Statement of Retirement Points) does not reflect the time she served on active duty from 2004 through 2008, she believes her DOR for CPT was calculated in error and would have been earlier than May of 2012. Even if the calculations were done correctly, which seems unlikely since she was only credited with not even 2 years TIG as a CPT when she received the final determination essentially erasing the 4 years she served on active duty, she reasonably relied on the assurances in the beginning of the process, that she would not lose more than 3 years TIG as a CPT. It is important to note that she had already been reassigned into the JAG Corps when she was told she would lose more years TIG than 3 years and transferring back to the Signal Corps at that point would have been difficult and was not guaranteed. f. Therefore, she respectfully requests her DOR for MAJ (21 June 2018) be adjusted to a year (2017 or earlier) that would be equitable in light of these circumstances. She has honorably and meritoriously served the Army as a commissioned officer since receiving her commission in December 2003. This adjustment of anywhere between 1 and 3 years is equitable in light of the errors and assurances she was promised when she made the initial decision. If given this opportunity, it would not be squandered. A quick review of her officer evaluation reports will show she is an officer who does more than the bare minimum, and it is an honor and privilege to lead America’s sons and daughters. 2. The applicant provides her: * DD Form 214, for the period from 20 January 2004 to20 January 2008 * Orders Number 097-048, dated 7 April 2009, announcing her honorable discharge from the FLARNG * SO Number 93 AR, dated 13 April 2009 * Orders Number C-09-112623, dated 8 September 2011 * Application for Appointment, dated 9 May 2013 (self –explanatory) * Appointment Application memorandum, dated 4 December 2013, stating the following: * her appointment in the rank of CPT, JAGC, USAR, without concurrent active duty, was approved * she should be appointed as a CPT, with 1 year, 8 months, and 21 days of TIG * in accordance with (IAW) Army Regulation (AR 135-100) Army National Guard and Army Reserve – Appointment of Commissioned and Warrant Officers of the Army), Table 3-4, she should receive 1 year of constructive credit for receiving a Juris Doctor as two of her law school years overlapped with her Commissioned Service * IAW AR 135-100, Table 3-5, she received 7 years, 8 months, and 21 days credit for prior Commissioned Service. * Appointment memorandum, dated 29 January 2014 * Orders Number C-02-402549, dated 24 February 2014, announcing her appointment 3. A review of the applicant’s service record shows: a. She was appointed in the RA on 20 January 2004. She held primary specialty 25A (Signal Officer). She was promoted to CPT, with an effective date and DOR of 1 March 2007. b. She was honorably released from active duty, as a CPT, on 20 January 2008, and transferred to the Florida Reserve unit. Her DD Form 214 shows she completed the following: * 4 years and 1 day of net service this period * 2 months and 16 days of total prior active service * 1 year, 1 month, and 27 days of total prior inactive service c. She was appointed in the FLARNG, as a CPT, on 21 January 2008. d. SO Number 93 AR, published by the National Guard Bureau (NGB) on 13 April 2009, announced withdrawal of her federal recognition and transfer to the USAR, effective 1 May 2009. e. She was honorably discharged from the FLARNG, as a CPT, on 5 May 2009, by reason of Resignation. She was transferred to the USAR Control Group (IRR). Her NGB Form 22 (Report of Separation and Record of Service) shows she completed the following: * 1 year, 3 months and 11 days of net service * 4 years, 7 months, and 28 days of prior Reserve Component service * 4 years and 1 month of prior active Federal service * 9 years, 11 months, and 10 days of total service for pay * 6 years, 4 months, and 18 days of total service for retired pay f. Orders Number C-09-112623, dated 8 September 2011, announced her reassignment from IRR to a troop program unit (TPU), effective 28 July 2011. g. She was appointed in the USAR, JA, as a CPT, on 29 January 2014. Her appointment memorandum shows she was credited with 1 year of service in an active status. h. She was ordered to active duty in support of Operation Enduring Freedom and entered on 6 April 2018. i. Orders Number B-06-805007, published by the U. S. Army Human Resources Command on 27 June 2018, announced her promotion to MAJ, with an effective date and DOR of 21 June 2018. j. Her record is void of any indication she was assigned to a valid higher-graded position prior to 21 June 2018, and eligible for an earlier DOR. The regulation governing promotion of Reserve TPU officers requires assignment to the higher-graded position. k. She served in Guantanamo Bay/Cuba from 13 April 2018 to 10 May 2019. l. She was honorably released from ADT on 1 July 2019 and was transferred to a Reserve unit. Her DD Form 214 shows she completed the following: * 1 year, 2 months, and 26 days of net active service this period * 4 years, 6 months, and 26 days of total prior active service * 9 years, 4 months, and 20 days of total prior inactive service * 1 year and 28 days of foreign service m. Orders Number 20-092-00004, dated 1 April 2020, announced her reassignment to a TPU, effective 27 April 2020. 4. By regulations: a. AR 135-155 (Army National Guard and U.S. Army Reserve Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), completion of 7 years' maximum TIG is required for promotion to MAJ, TPU officer must be serving in a position requiring the higher grade, and will have a promotion date and DOR no earlier than the approval date of the board, provided that they are assigned to a position in the next higher grade. When the board approval date is prior to assignment to the higher graded position, the effective date and DOR will be the date of assignment to a higher-graded position. b. AR 135-100 (Army National Guard and Army Reserve Appointment of Commissioned and Warrant Officers), Tables 3-3; 3-4; and 3-5; list policies for assignment in the JAGC. The applicant’s date of appointment (new commission) was governed by AR 135-100 when she was reappointed. 5. Title 10, U.S. Code (USC), section 14304, states that officers shall be placed in the promotion zone for that officer's grade and competitive category and shall be considered for promotion to the next higher grade by a promotion board far enough in advance of completing the years of service in grade specified so that, if the officer is recommended for promotion, the promotion may be effective on or before the date on which the officer will complete those years of service. The maximum years of service for promotion to the grade of MAJ is 7 years. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found relief is not warranted. 2. The Board found insufficient evidence of error in calculating the applicant's TIG for CPT when she received a new appointment in the JAGC. While she may have been told she would lose less TIG than she actually did, this is not evidence of inequitable treatment insofar as the regulation governing JAGC appointments is the authority for this calculation. Based on a preponderance of evidence, the Board determined the applicant's DOR for MAJ is not in error or unjust. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XX :XX :XX 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. 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. Army Regulation 135-155 (Army National Guard and U.S. Army Reserve Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), prescribes the policies and procedures for promotion of Reserve officers. It specifies that completion of 7 years' maximum time in grade is required for promotion to major. Officers assigned to a troop program unit (TPU) must be serving in a position requiring the higher grade. TPU officers selected by a promotion board will have a promotion date and date of rank no earlier than the approval date of the board, provided that they are assigned to a position in the next higher grade. When the board approval date is prior to assignment to the higher graded position, the effective date and date of rank will be the date of assignment to a higher-graded position. 2. AR 135-100 (Army National Guard and Army Reserve Appointment of Commissioned and Warrant Officers), prescribes policy and procedures for the appointment of commissioned and warrant officers in the Army National Guard of the United States and the United States Army Reserve (USAR). The regulation states in: a. Paragraph 3-10 (Appointment in the Judge Advocate General’s Corps (JAGC)) – prescribes the special requirements for appointment of personnel in the JAGC. Only qualified applicants will be appointed in the JAGC. This section lists the minimum requirements. 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. b. Paragraph 3–11 (Special eligibility requirements) – the general eligibility requirements of chapter 1 are supplemented by this section. Applicants must: (1) Meet the eligibility requirements of AR 27–1 (Legal Services – JA Legal Services). (2) Have successfully completed the minimum military education requirements of AR 27–1 for JAGC officers. This education is for appointment in the grade for which the applicant is otherwise eligible under paragraph 3–12 below, except if the applicant is otherwise qualified, The Judge Advocate General (TJAG) has the discretion to authorize the applicant’s appointment in the JAGC, with the condition that: * Company grade officers complete The Judge Advocate Officer Basic Course within 12 months of the date of appointment. * Field grade officers complete The Judge Advocate Officer Advanced Correspondence Course within 30 months of the date of appointment. * Reserve officers under conditional appointments must not fail to satisfy the educational requirements of (a) or (b) above. Failure will result in the termination of the appointment unless an extension is granted. TJAG may grant an extension to the time periods in (a) or (b) on a showing of good cause. Extension will be for a specific period designated by TJAG. The extension will operate to continue the conditional appointment. The appointment will be terminated for failure to complete the education requirement within the extension period (AR 135–175 (Army National Guard and Reserve – Separation of Officers), paragraph 4–4a(18)). These military education prerequisites are waived if the applicant requests appointment and concurrent voluntary AD with the JAGC under AR 601–102. c. Paragraph 3–12a (Appointment grade and date of rank) – Appointments under this section are subject to the requirements of chapter 1 and paragraph 3–11. Persons receiving original appointments as Reserve officers of the Army with assignment to the JAGC will be appointed in the highest grade entitled under Title 10, U. S. Code, section 3359, as follows: * Table 3–3 (Appointment grades): * Commissioned Service Credit: 3 years or more, but less than 7 years Appointment Grade: First Lieutenant * Commissioned Service Credit: 7 years or more, but less than 14 years Appointment Grade: Captain * Commissioned Service Credit: 14 years or more, but less than 21 years Appointment Grade: Major * Commissioned Service Credit: 21 years or more, but less than 23 years Appointment Grade: Lieutenant Colonel * Commissioned Service Credit: 23 years or more Appointment Grade: Colonel or Lieutenant Colonel as determined by HQDA * Table 3–4 (Constructive service credit) * Qualifications: (a) Award of the first professional law degree (J.D. or LL.B) by a law school accredited by the American Bar Association at the time the applicant received the degree. Credit: 3 years * Qualifications: (b) Special legal experience in unusual cases, based on the needs of the Army command or activity to which the appointee will be assigned. Credit: One–half year for each year of qualifying experience, up to a maximum of 3 years credit. Notes: Requests for such credit will accompany the application for appointment and will fully justify the unique needs of the command or activity and the special qualifications of the person to be appointed. Periods spent in an active status or on active duty may not be counted when computing constructive service credit. (3) Credit for prior commissioned service will be computed as follows: * Table 3–5 (Prior commissioned service credit: * Qualifications: (a) Active duty commissioned service (other than as a commissioned warrant officer) to include periods of annual training or other active duty for training performed while a member of any component of the military services. Credit: 1 year for each year of service * Qualifications: (b) Commissioned service (other than as a commissioned warrant officer) in an active status, while serving in any component of the military services, but not on extended active duty. Credit: 1 year for each year of service * (4) An officer completing an educational program qualifies for constructive service credit under (2)(a) above, while in an active commissioned status, in less than 3 years may be credited with constructive service credit in the amount by which 3 years exceeds the time spent in the qualifying educational program in an active status. d. Paragraph 3-12b (Date of rank): (1) 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. (2) The DOR of a JAGC Reserve officer ordered to AD and placed on the ADL may be adjusted under AR 600–20, chapter 6. 3. Title 10, USC, section 14304, states that officers shall be placed in the promotion zone for that officer's grade and competitive category and shall be considered for promotion to the next higher grade by a promotion board far enough in advance of completing the years of service in grade specified so that, if the officer is recommended for promotion, the promotion may be effective on or before the date on which the officer will complete those years of service. The maximum years of service for promotion to the grade of LTC is 7 years. 4. Title 10, USC, section 14311, the appointment of an officer to a higher grade may not be delayed under subsection unless the officer is given written notice of the grounds for the delay. The preceding sentence does not apply if it is impracticable to give the officer written notice before the date on which the appointment to the higher grade would otherwise take effect, but in such a case the written notice shall be given as soon as practicable. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210007392 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1