RECORD OF PROCEEDINGS
             AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS


IN THE MATTER OF:      DOCKET NUMBER:  BC-2002-01661
            INDEX CODE:  129.01

            COUNSEL:  NONE

            HEARING DESIRED:  NO

_________________________________________________________________

APPLICANT REQUESTS THAT:

His “Pay Date” be adjusted to reflect the change in  Public  Law  104-
201, Section 507, dated 23 Sep 96.

By amendment at Exhibit E, the applicant is requesting that  his  date
of rank (DOR) to the grade of first lieutenant be changed from  “2 Jun
95” to “29 May 95” and that his DOR to the grade of captain be changed
from “2 Jun 97” to “29 May 97.”

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APPLICANT CONTENDS THAT:

The change in law allows  credit  for  pay  date  when  a  member  has
incurred a Reserve obligation time  if  the  member  was  concurrently
serving as a cadet.

His Air Force records indicate he was promoted to the grade  of  first
lieutenant, with a DOR of “2 Jun 95” and to captain, with a DOR of  “2
Jun 97.”  However, since the advisory writer states he was promoted to
the grade of first lieutenant on “29 May 95” and to captain on “29 May
97,” his official records should mirror the advisory writer’s records.

In support of his request, the applicant submits a personal  statement
and additional documents associated  with  the  issues  cited  in  his
contentions.  The applicant’s complete submission,  with  attachments,
is at Exhibit A.

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STATEMENT OF FACTS:

Information extracted from the applicant’s submission reveals that the
applicant entered the Delayed Entry/Enlistment Program  (DEP),  United
States Army Reserve, on 15 Sep 86.  He was discharged from the DEP  in
the pay grade of E-2  on  17  Mar  87  and  enlisted  in  the  Regular
component of the United States  Army  (USA).   Special  Orders  128-6,
dated 15 Jul 88, reflects that the applicant entered the United States
Military Preparatory School on 31 Jul  88.   On  27  Jun  89,  he  was
released from active duty to enter U.S. Military Academy (USMA).  Upon
graduation from the USMA, he was commissioned a second  lieutenant  in
the Reserve of the Air Force, effective 29 May 93, and commissioned  a
second lieutenant in the Regular Air Force, effective and with a  date
of rank (DOR) of  2  Jun  93.   The  applicant’s  Leave  and  Earnings
Statement (LES), covering the period 1-30 Apr 02, reflect a  pay  date
of 19 Feb 91.

Information extracted from the Military Personnel Data System (MilPDS)
reveals that  the  applicant  was  promoted  to  the  grade  of  first
lieutenant, effective and with a DOR of 2 Jun 95, and to the grade  of
captain, effective and with a DOR of 2 Jun 97.

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AIR FORCE EVALUATION:

HQ AFPC/DPPAO recommends the application be denied.   DPPAO  indicates
that, in accordance with the Department of Defense Pay Manual of 1 Jan
93, when a member is currently serving  as  an  officer  and  has  had
service as a cadet or midshipman after 25 Jun 56, the  period  is  not
creditable for pay.  DPPAO states that the applicant was  awarded  pay
credit for the period 17  Mar  87  to  27 Jun  89.   This  credit  was
subtracted from his commissioning date of 29 May 93, arriving at a pay
date of 18 Feb 91.  Based on the governing directives, the applicant’s
pay date was computed correctly.  However, should  the  Board  approve
the relief sought, the record should be corrected  to  reflect  a  pay
date of 17 Mar 87.  The HQ AFPC/DPPAO evaluation, with attachments, is
at Exhibit C.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the advisory opinion  and  indicated  that  the
change in Public Law 104-201, Section 507, on 23 Sep 96,  changes  the
law to recognize concurrent service.  These changes are  reflected  in
DoD Financial Management Regulations, dated Feb 99  and  Feb  02,  and
supersedes advisory writer’s referenced DoD Pay Manual of  1  Jan  93.
He has provided HQ AFPC/DPPAO  with  additional  proof  of  concurrent
service as cited in  his  orders  releasing  him  from  U.S.  Military
Academy (USMA) and “dual status are concurrently discharged from cadet
and  enlisted  status.”   He  also  provided  a  copy  of  his  orders
identifying his “Terminal Date of Reserve Obligation:  Ends on 14  Sep
97.”

Further, he believes a precedent was established because the U.S. Army
recognized the change in law by adjusting pay dates  in  two  specific
cases that he is aware of at this time.  In both cases the  U.S.  Army
officers had similar prior enlisted service (U.S. Army), with  Reserve
obligation dates, and both were commissioned from  the  U.S.  Military
Academy at West Point.  Both members received a change  in  their  pay
date based on the change in Public Law by the U.S. Army Personnel  and
Finance Office.

The applicant’s complete submission, with attachments, is  at  Exhibit
E.

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ADDITIONAL AIR FORCE EVALUATION:

Pursuant to the  Board’s  request,  the  following  legal  opinion  is
provided.

HQ USAF/JAG recommends the application be denied.  JAG disagrees  with
the applicant’s interpretation of 10 U.S.C., 2107(g),  as  amended  by
section 507 of the National Defense Authorization Act for Fiscal  Year
1997 (P.L. 104-201, Sep 23, 1996).   In  JAG’s  opinion,  the  statute
allows concurrent enlisted service as a member of the selected Reserve
to be used in computing creditable service  for  pay  dates  only  for
officers who were cadets or midshipmen in the Senior Reserve Officers’
Training Corps (SROTC) program.  The  provision  relied  upon  by  the
applicant does not apply to concurrent service in the Selected Reserve
while serving as a cadet or midshipman at a service academy.   Section
2107(g) applies only to an officer commissioned pursuant  to  a  SROTC
financial assistance agreement who was also a member of  the  Selected
Reserve while in  the  SROTC  prior  to  appointment  as  an  officer.
Because  the  applicant  was  appointed  an  officer   subsequent   to
graduation from the U.S. Military  Academy,  and  not  pursuant  to  a
financial assistance agreement as an SROTC cadet under  Section  2107,
he is not entitled to the application of Section 2107(g) in  computing
creditable service for his  pay  date.   The  authority  in  paragraph
010104 of the DoDFMR  cannot  be  any  broader  than  the  legislative
authority granted in Section 2107(g).  It therefore does not apply  to
an officer who was a cadet at  the  U.S.  Military  Academy  prior  to
commissioning even though he was concurrently a member of the Selected
Reserve during his cadet service.   JAG  states  that  the  fact  that
another DoDFMR provision (paragraph 010104.K)  provides  that  service
credit may be given for service “as a member of the…  Reserve  Officer
Training Corps provided the member has concurrent Reserve status” does
not serve to indicate that paragraph 010104.I is intended to apply  to
Academy cadets or midshipmen.

The applicant asserts that the Army has given pay credit to  two  Army
officers for their cadet service at the Military Academy because  they
were also in the Reserves during that period of service.  Even if  the
applicant’s assertion is accepted as fact, JAG  does  not  believe  it
provides a valid precedent for  granting  the  relief  requested.   In
JAG’s opinion, there is no valid statutory or regulatory authority for
granting such service credit.  JAG believes the HQ AFPC recommendation
that the application be denied is correct.

The HQ USAF/JAG evaluation is at Exhibit F.

_________________________________________________________________

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to applicant on 5 Mar
03 for review and response.  As of this date, this office has received
no response (Exhibit E).

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THE BOARD CONCLUDES THAT:

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

2.  The application was not  timely  filed;  however,  it  is  in  the
interest of justice to excuse the failure to timely file.

3.  Insufficient relevant evidence has been presented  to  demonstrate
the  existence  of  error  or  injustice.   We  took  notice  of   the
applicant's complete submission in judging the  merits  of  the  case.
However, we  agree  with  the  opinions  and  recommendations  of  the
respective Air Force offices concerning applicant’s Pay Date and adopt
the rationale expressed  as  the  basis  for  our  decision  that  the
applicant has failed to sustain his burden that he has suffered either
an error or an injustice.  Inasmuch as the statute does not  apply  to
cadets at service academies, this change in law would not  affect  the
applicant’s established Pay Date.   With  regard  to  the  applicant’s
request that his dates of rank to the grades of first  lieutenant  and
captain be changed as indicated in the HQ AFPC/DPPAO advisory opinion,
we disagree.  In this respect, we note that the applicant’s  dates  of
rank in question are accurately reflected in  the  Military  Personnel
Data System (MilPDS).  Therefore,  even  though  the  advisory  writer
misstated the dates of rank this, in and of itself, does  not  justify
an erroneous correction.  In view of the above and absent evidence  to
the contrary, we find no compelling basis to  recommend  granting  the
relief sought in this application.

_________________________________________________________________

THE BOARD DETERMINES THAT:

The  applicant  be  notified  that  the  evidence  presented  did  not
demonstrate the existence of 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  this  application  in
Executive Session on 18 June 2003, under the  provisions  of  AFI  36-
2603:

                  Mr. Thomas S. Markiewicz, Vice Chair
                  Mr. Billy C. Baxter, Member
                  Mr. Wayne R. Gracie, Member

The following documentary evidence was considered in  connection  with
AFBCMR Docket Number BC-2002-01661.

   Exhibit A.  DD Form 149, dated 13 May 02, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFPC/DPPAO, dated 4 Oct 02, w/atchs.
   Exhibit D.  Letter, SAF/MRBR, dated 11 Oct 02.
   Exhibit E.  Letter from Applicant, dated 15 Oct 02, w/atchs.
   Exhibit F.  Letter, HQ USAF/JAG, dated 28 Feb 03.
   Exhibit G.  Letter, AFBCMR, dated 5 Mar 03.




                                   THOMAS S. MARKIEWICZ
                                   Vice Chair