RECORD OF PROCEEDINGS
         AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  01-00020


            INDEX NUMBER:  129.01



            COUNSEL:  NONE


            HEARING DESIRED:  NO

___________________________________________________________________

APPLICANT REQUESTS, IN ESSENCE, THAT:

The Board make his record reflect the actual time he served  (four  years
and one day); and that he receive O-1E pay retroactively to his  date  of
commissioning.

___________________________________________________________________

APPLICANT CONTENDS THAT:

The Department of Defense (DOD) method of calculation of his prior active
enlisted service is either in error or unjust.

He states, in part, that his DD  Form  214  (Certificate  of  Release  or
Discharge from Active Duty) indicates that he had 3 years, 11 months, and
29 days of prior enlisted active duty service.  This implies that  he  is
two days short of meeting the requirement as an officer  with  over  four
years of enlisted active duty service when, in  actuality,  he  has  1461
days of prior enlisted active duty service, which totals four  years  and
one day exactly.

Applicant’s complete statement  and  documentary  evidence  submitted  in
support of his appeal are at Exhibit A.

___________________________________________________________________

STATEMENT OF FACTS:

Applicant’s Total Active Federal Military Service  Date  (TAFMSD)  is  21
August 1995, his Total Active Federal Commissioned Service Date  (TAFCSD)
and his Total Federal Commissioned Service  Date  (TFCSD)  is  21  August
1999.

Applicant initially served in an enlisted status in the U. S.  Army  from
3 April 1992 - 5 January 1996, completing 3 years, 9 months, and  3  days
of active service.  He served in the Army Reserve  during  the  period  6
January 96 – 19 April 1999.  He enlisted in the Air Force Reserve  on  20
May 1999, and was ordered to extended active duty  on  24  May  1999,  to
attend Officer  Training  School  (OTS).   On  19  August  1999,  he  was
honorably discharged to accept a commission, having  completed  2  months
and 26 days of active service during this period.  He was commissioned as
a second lieutenant in the Air  Force  Reserve  on  20  August  1999  and
entered on extended active duty (EAD) on 21 August 1999.

On September 20, 2001, the Air Force Board  for  Correction  of  Military
Records  (AFBCMR)  (hereinafter  referenced  as  the   Board)   initially
considered the applicant’s request and unanimously recommended that it be
approved.  Based on the applicant’s calculation of the number of days  he
served on active duty in an enlisted status (1461), the  Board  concluded
that the DoD method of calculation (which rendered him two days short  of
having over four years) was unfair and constituted an  injustice  to  the
applicant.

On January 4, 2002, the Director, Air Force Review Boards Agency (AFRBA),
referred the case back to the Board for further evaluation.  He  advised,
among other things, that:

     a.  Public Law 85-422 (now obsolete) established a special  category
of basic pay for officers in pay grades O-1 through O-3 who had more than
four years of prior active enlisted service; and that the intent  of  the
law was to prevent members appointed to a commissioned grade  after  long
enlisted service from having to accept  a  reduction  in  basic  pay  and
remove a disincentive to accept commissioned service.

     b.  Applicant  admits  that  according  to   the   DoD   method   of
calculation, he does not have over four years of prior enlisted  service.
However, he points out that, based on actual calendar days (1461), he has
4 years and 1 day of prior enlisted service and believes the injustice is
in the DoD method [of] calculation.  The Director,  AFRBA,  continued  by
stating that the OPR advises that the applicant’s prior enlisted  service
was properly computed and recommends that the application be denied.  The
Board panel agrees with the applicant,  but,  rather  than  awarding  the
applicant two additional days of active enlisted service, it recommends a
correction of records to show that he was eligible for the rate of  basic
pay for pay grade O-lE when he entered on EAD in a commissioned status.

In reevaluating the case, the Director, AFRBA  encouraged  the  Board  to
consider, essentially, the following:

     a.  The Office of the Judge Advocate General has  previously  stated
that they do not believe the Board can authorize payment of a  claim  for
which underlying statutory or regulatory authority is absent.   In  other
words, the proper application of the  statutes  and  regulations  to  the
applicant’s records  without  a  correction  of  records  results  in  no
entitlement.

     b.  Even if counting actual calendar days were the correct method of
computation, applicant is mistaken in his computation.  In any continuous
four-year period, one of the years is a leap year of 366 days.   Allowing
for  that  leap  year,  1461  days  equals  exactly  four  years.   Since
eligibility for the O-1E rate is  predicated  on  more  than  four  years
enlisted service, he does not qualify even by his own computation.

     c.  The  methodology  for  computing  active  enlisted  service   is
governed by DoD policy and the Secretary of the Air Force General Counsel
has opined the Board lacks authority to change this  policy  even  if  it
were so inclined.

     d.  Similar cases have been denied in the past and the Board  should
strive for consistency.

Lastly, the Director, AFRBA asked that his memorandum, with  attachments,
be made available to the applicant and/or  his  counsel  for  review  and
comments prior to referral of the case  to  the  Board  to  comport  with
applicable law.

___________________________________________________________________

AIR FORCE EVALUATION:

The  Retirements  Branch,  HQ  AFPC/DPPRR,  recommends  denial   of   the
applicant’s request because he did not have over  four  years  of  active
enlisted service.  That office indicates that  DOD  Financial  Management
Regulation (FMR), Vol. 7A, Chapter 1, states that  commissioned  officers
in the grades of O1 - O3 are entitled to receive O4E  pay  if  they  have
four years of active enlisted service. Additionally, AFI 36-2604, Service
Dates and Dates of Rank, para. 4.13, directs service dates to be computed
in accordance with para. 0104 and 010401 of DOD FMR.   (Examiner’s  Note:
AFI 36-2604, advises a formula of considering  each  month  as  30  days;
i.e., a 360-day calendar to be used when  computing  service  dates).   A
complete copy of the evaluation is at Exhibit C.

___________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

Applicant reiterated his contentions that based  on  the  DOD  method  of
calculation he has 3 years, 11 months, and  29  days  of  prior  enlisted
active duty service.  However, based on the actual calendar days, he  has
4 years and 1 day of prior enlisted active duty service.   The  injustice
is in the DOD method of calculation.  A complete copy of his response  is
at Exhibit E.

___________________________________________________________________

APPLICANT’S REVIEW OF SUBMISSION FROM AFRBA:

Applicant disagrees with the Director, AFRBA’s  assertion  that  even  if
counting actual calendar days were the correct method of computation,  he
(applicant) is mistaken in his computation.  He  points  that  he  didn’t
serve in a continuous four-year period; and, that never once in his  1461
days of enlisted active  duty  service  did  he  serve  on  the  29th  of
February.  Applicant also argues that his case  is  not  similar  to  the
cases cited by the Director as being denied in  the  past  because  those
individuals served during a leap year and only served standard  four-year
enlistment contracts.  Applicant’s  complete  statement  is  included  as
Exhibit H.

___________________________________________________________________

THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law  or
regulations.

2.  The application was timely filed.

3.  Based on the applicant’s calculation of the actual number of days  he
served in an active duty enlisted status, we initially concluded the  DoD
method of calculation was unfair to him  and  constituted  an  injustice.
However, after carefully considering all the circumstances of this  case,
including the submissions of the Director,  AFRBA,  and  the  applicant’s
response thereto, we are not persuaded that he  has  suffered  either  an
error or an injustice.  We do not dispute the fact that  the  applicant’s
computation of his actual number of days of active duty enlisted  service
equates to over four years of active duty enlisted service.  However, the
applicant’s computation of his actual  number  of  days  of  active  duty
enlisted service is not controlling in this case.  To the  contrary,  DoD
Financial Management Regulation (FMR)  dictates  the  methodology  to  be
utilized in computing credible service for  prior  enlisted  active  duty
service.  Unfortunately for the applicant, this  methodology  results  in
his receiving credit for only 3 years, 11 months and  29  days  of  prior
enlisted active duty service; two days short of the service  required  to
be eligible for the special pay rate he seeks.

4.  We do not know the reason for the DoD  FMR’s  method  of  calculating
active duty enlisted service.  However, as noted by the Director,  AFRBA,
the Office of the Air Force General Counsel has opined  that  they  would
not view the even-handed application of a policy of general applicability
to be unjust.  That office also emphasizes that the Board’s charter  does
not extend to changing policies of general applicability.  Stated another
way, we do not have the authority to change the policy even if we were so
inclined.  More significantly, however, we have for the first  time  been
made aware of the intent of the law that authorized the special pay  rate
in the first place.  Because of  the  way  the  law  is  written,  a  few
officers with over four years of enlisted active duty service do  qualify
for the special pay rate.  However, the intent of the law is  to  prevent
members appointed to a commissioned grade  after  long  enlisted  service
from having to accept a reduction in basic pay and remove a  disincentive
to accept commissioned service.  We do  not  find  that  the  applicant’s
length of prior enlisted active duty service meets this  criterion.   Nor
do we find that the DoD FMR’s  method  of  computing  prior  active  duty
enlisted  service  to  be  an  abuse  of  its  discretionary   authority.
Therefore, in the absence of substantial evidence  to  the  contrary,  to
grant the applicant’s request would provide him a financial advantage  to
which he is clearly not entitled.

___________________________________________________________________

THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate
the  existence  of  probable  material  error  or  injustice;  that   the
application was denied  without  a  personal  appearance;  and  that  the
application will only  be  reconsidered  upon  the  submission  of  newly
discovered relevant evidence not considered with this application.

___________________________________________________________________

The following members of the Board considered AFBCMR  Docket  Number  01-
00020 in Executive Session on  20  September  2001.   The  case  was  re-
evaluated on 8 and 19 February 2002.

                 Mrs. Barbara A. Westgate, Chair
                 Mr. Roscoe Hinton Jr., Member
                 Mr. Roger E. Willmeth, Member

The following documentary evidence was considered:

     Exhibit A.  DD Form 149, dated 27 Dec 00, w/atchs.
     Exhibit B.  Applicant's Master Personnel Records.
     Exhibit C.  Letter, HQ AFPC/DPPRR, undated, w/atchs.
     Exhibit D.  Letter, SAF/MIBR, dated 27 Jul 01.
     Exhibit E.  Letter, Applicant, dated 8 Aug 01.
     Exhibit F.  Letter, SAF/MRB, dated 4 Jan 02, w/atchs.
     Exhibit G.  Letter, AFBCMR, dated 9 Jan 02.
     Exhibit H.  Letter, Applicant, dated 14 Feb 02, w/atchs.



                                   BARBARA A. WESTGATE
                             Chair