IN THE CASE OF: 

		BOARD DATE: 18 April 2023

		DOCKET NUMBER: AR20220011179


APPLICANT REQUESTS: This case comes before the Army Board for Correction of 
Military Records (ABCMR) on a remand from the United States Court of Federal Claims. 
The Court noted the United States Court of Appeals for the Federal Circuit determined 
the applicant satisfied requirements of Title 10, U.S.C., section 14706(a)(3) and section 
14706(b) and is entitled to exclude his service during law school in the calculation of his 
Mandatory Removal Date (MRD). The Court directs the ABCMR to recalculate his MRD 
accordingly. The Court further directs the ABCMR to determine which fiscal years the 
applicant may be eligible for a Special Selection Board (SSB) for potential promotion to 
Colonel, direct an SSB be conducted, and correct the record to ensure the applicant 
receives appropriate back pay and other benefits. 

APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD:

*	Complaint
*	Defendants Motion for Voluntary Remand
*	Court of Federal Claims Remand filed 14 November 2022

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 Numbers:

		AR20130007920 on 20 August 2013,
		AR20160003490 on 21 July 2016,
   AR20190013095 on 28 January 2020, and 
		AR20200005848 on 12 June 2020

2.  The applicant states through counsel in pertinent part the applicant was wrongfully 
discharged from the U.S. Army on 1 June 2016 because the Army miscalculated his 
MRD. Specifically, in calculating his MRD, the Army included the time period during 
which he was enrolled as a full-time law student prior to his service in the U.S. Army 
Reserve (USAR) Judge Advocate General (JAG) Corps.

3.  A review of the applicant's available service reflect the following:

	a.  His record is void of his initial appointment and execution of oath of office as a 
Reserve commissioned officer.

	b.  DD Form 214 (Certificate of Release or Discharge from Active Duty), ending on 
2 September 1992 reflects an honorable release from active duty as a Transportation 
Officer, at the grade of First Lieutenant (1LT)/O-2. Item 12 (Record of Service) shows 
service from 18 January 1989 to 4 September 1992 with a net active service this period 
of 3 years, 7 months, and 17 days. 

	c.  From September 1992 to May 1995, he attended Louisiana State University, Paul 
M. Herbert Law Center for his Juris Doctorate prior to returning to the USAR.  

	d.  On 23 August 1995, U.S. Total Army Personnel Command issued Orders 
Number A-08-003928 ordering him to active duty with the 10th Mountain Division (Light 
Infantry) and Fort Drum with a reporting date of 22 January 1996 enroute to the JAG 
Basic Course. 

	e.  On 9 September 1995, he was appointed as a Reserve commissioned officer and 
executed an oath of office.

	f.  His DA Form 1059 (Service School Academic Evaluation Report) shows he 
attended and completed the JAG Officer Basic Course from 2 October 1995 to 
21 December 1995 and achieved course standards.

	g.  On 10 March 2003, the Department of the Army, Heidelberg Transition Center 
issued Orders Number 069-06 reassigning him to the U.S. Army transition point for 
transition processing and upon completion for release of active duty, effective 
1 July 2003.

	h.  On 16 April 2003, Heidelberg Transition Center issued Orders Number 106-01 
amending Orders Number 069-06 from assigned to the U.S. Army Reserve Control 
Group (Reinforcement) and assigned him to the 154th Legal Support Operations Team 
1327 Eisenhower Drive, Savannah, GA, under the authority of the Reserve 
Components Contract.

	i.  DD Form 214, ending 1 July 2003 reflects he served on active duty from 
30 September 1995 to 1 July 2003 as a Judge Advocate Officer. Item 12 (Record of 
Service) shows a net active service this period of 7 years, 9 months, and 2 days with 
total prior active service of 3 years, 7 months, and 17 days.


	j.  On 3 October 2003, the U.S. Army Human Resources Command (HRC) issued 
Orders Number A-10-301324 ordering him to active duty, effective 12 October 2003 and 
he continued service as an Active Guard/Reserve member. 

	k.  His DA Form 1059 shows he attended and completed the Judge Advocate Officer 
Advanced Course – Phase II from 8 January 2006 to 20 January 2006 and achieved 
course standards.

	l.  On 2 July 2009, HRC issued a Memorandum Notification of Eligibility for Retired 
pay at Age 60 (Twenty Year Letter).

	m.  On 13 July 2010, HRC issued Orders Number B-07-004663 promoting him to the 
rank of lieutenant colonel (LTC), effective 21 June 2010.

	n.  His DA Form 1059-1 (Civilian Institution Academic Evaluation Report) shows he 
attended the Tufts University, The Fletcher School of Law and Diplomacy in Medford, 
Massachusetts from 29 August 2011 to 11 July 2012 and satisfied all requirements 
expected for a Department of Defense Senior Service College graduate.

	o.  On 18 November 2015, HRC issued: Orders Number C-11-516253 reattaching 
him to Schofield Barracks for separation processing with a report date of 11 March 
2016, and Orders Number P-11-590288 retiring him from active duty, effective 31 May 
2016 and placing him on the retired list, effective 1 June 2016 at the rank of LTC.

	p.  DD Form 214, ending 31 May 2016 reflects an honorable retirement for maximum 
service or time in grade. Item 12 (Record of Service) shows service from 9 May 2004 to 
31 May 2016 with a net active service this period of 12 years and 22 days; total prior 
active service of 12 years, 1 month, and 16 days; and total prior inactive service of 3 
years, 9 months, and 26 days.

	q.  On 23 August 2013, in ABCMR Docket Number AR20130007920, the Board 
denied the applicant's request for his MRD to be adjusted from 1 June 2016 to 1 June 
2019 stating there was no evidence to show he would have been granted an 
educational delay. He provides insufficient evidence/argument to show that the 
requested relief should be granted.  

	r.  On 21 July 2016, in ABCMR Docket Number AR20160003490 the Board denied 
the applicant’s request for reconsideration stating 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.

	s.  On 29 January 2020, in ABCMR Docket Number AR20190013095 the Board 
denied the applicant's court remand reconsideration stating the evidence presented 
does not demonstrate the existence of a probable error or injustice. Therefore, the 
Board determined the overall merits of the case are insufficient as a basis for correction 
of the records of the individual concerned.

	t.  On 12 June 2020, in ABCMR Docket Number AR20200005848 the Board denied 
the applicant's court remand request for reconsideration stating the evidence presented 
does not demonstrate the existence of a probable error or injustice. Therefore, the 
Board determined the overall merits of the case are insufficient as a basis for correction 
of the records of the individual concerned.

BOARD DISCUSSION:

After reviewing the application and the U.S. Court of Federal Claims remanded case, 
the Board agreed that the record should be corrected to show the applicant’s military 
service while he attended law school was excluded in the calculation of the applicant’s 
Mandatory Removal Date (MRD). The Board further agreed that the applicant’s 
retirement date should be adjusted, he should be allowed to submit his service record 
before a Special Selection Board for promotion consideration, and the Defense Finance 
and Accounting Service should review the corrected records and calculate basic pay 
and allowances as a result of the correction.

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:

1. The Board determined the evidence presented is sufficient to grant full relief to the 
applicant. The Board recommends that all Department of the Army records of the 
applicant be corrected to show the following actions:

	a. Adjust the applicant’s MRD from 30 June 2016 to 2 March 2019, provided his total 
length of service does not violate any sections of Title 10, United States Code, for his 
current grade of LTC/O-5.

	b. Amend his retirement orders to show his date of retirement as 28 February 2019, 
provided his total length of service does not violate any sections of Title 10, United 
States Code, for his current grade of LTC/O-5.

	c.  Amend the applicant’s DD Form 214 to show the corrected retirement date in 
Block 12b and adjust the net active service in Block 12c.

2. The Board directs this decision be provided to the Defense Finance and Accounting 
Service with a request to calculate basic pay and allowances for the period 1 June 2016 
to his corrected retirement date, less retired pay received and other deductions.

3. The Board further directs the applicant be allowed to submit his service record to a 
Special Selection Board for promotion consideration to Colonel under the criteria and 
instructions established for the appropriate FY16, FY17, and FY18 promotion boards.

	 
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.  Title 10, United States Code, 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): 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: 

a.	Service as a WO. 

b.	Constructive service. 

   c.	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. 

d.	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. 

e.	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 135-133 (Ready Reserve Screening, Qualification Records System, and Change 
of Address Reports), effective 10 July 1989, and in effect at the time of the applicant's 
law school in 1992-1995. This regulation prescribes the use and purpose for the DA 
Form 3725 (Army Reserve Address and Status Verification), 1984 edition. The purpose 
is to gather information to update the Reservist's Personnel Record to determine 
availability for mobilization and to determine eligibility for release from the Ready 
Reserve (drilling Reserve). Instruction 6 on the back side of the DA Form 3725, 1984 
edition, for completing box 6 on the form entitled “Employer” states: “Enter your 
employer's name … and your job title. Describe your duties and responsibilities. … 
Teachers indicate the subjects and grade levels taught. Students enter the word 
“student” and your major field.”

4.  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. 

5.  AR 600-8-29 (Officer Promotions) states:

	a.  Paragraph 6-2 (Purpose of boards) SSBs may be convened under Title 10, USC, 
section 628 to consider or reconsider commissioned or warrant officers for promotion 
when Headquarters Department of the Army (HQDA) determines that one or more of 
the following circumstances exist:

		(1) Administrative error (Title 10, USC, section 628(a)(1)) (SSB required). An 
officer was not considered from in or above the promotion zone by a regularly 
scheduled board because of administrative error. This would include officers who 
missed a regularly scheduled board while on the Temporary Disability Retired List and 
who have since been placed on the Active Duty List.

		(2) Material unfairness (10 USC 628(b)(1)) (HRC discretionary). (a) The action of 
the promotion board that considered the officer from in or above the promotion zone 
was contrary to law in a matter material to the division of the board or involved material 
error of fact or material administrative error. (b) The board that considered the officer 
from in or above the promotion zone did not have before it for its consideration material 
information. 

	b.  Paragraph 6-3 (Cases not considered) an officer will not be considered or 
reconsidered for promotion by an SSB when an administrative error was immaterial, or 
the officer, in exercising reasonable diligence, could have discovered and corrected the 
error in the Army Human Resources Record (AMHRR). It is the officer’s responsibility to 
review his or her AMHRR before the board convenes and to notify the board, in writing, 
of possible administrative deficiencies.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings (cont)	AR20220011179


1
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


1