RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER: BC-2012-01425
		COUNSEL: NO 
	XXXXXXX	HEARING DESIRED: YES

_________________________________________________________________

APPLICANT REQUESTS THAT:

His DD Form 214, Certificate of Release or Discharge from Active 
Duty, be corrected to reflect the following: 

	a) Block 12a, his initial entry on extended active duty (EAD) 
to read 2 Jun 04 versus 29 Sep 05. 

	b) Block 12c, be adjusted to include his active service time 
as a Uniformed Services University Health Sciences (USUHS) 
student for the period 6 Aug 04 to 28 Sep 05 (418 days) versus 
the time being reflected as inactive service in Block 12e.

	c) Block 18, to add the remark that “418 days served at USUHS 
are not creditable in determining retirement eligibility or 
computing basic pay under 37 United States Code (USC) 205.” 

By letter, dated 23 May 13, the applicant amended his request to 
reflect that his DD Form 214, blocks 12a, 12c, 12d, 18, or a 
combination of these blocks be credited as active service rather 
than inactive service.

_________________________________________________________________

APPLICANT CONTENDS THAT:

1. Department of Defense Instruction (DoDI) 1336.01, Certificate 
of Release or Discharge from Active Duty (DD Form 
214/215 Series) enclosure 3, section 3j states “the date entered 
in block 12a shall be the date of enlistment for the earliest 
period of continuous active service for which a DD Form 214 was 
not previously issued.” 

2. On 2 Jun 04, he was commissioned and served on continuous 
active duty until 2 Jun 12.  The fact that he changed from line 
of the Air Force (LAF) to the Medical Service Corps (MSC) does 
not change the fact this his continuous active service began on 
2 Jun 04.  

3. Block 12c does not include 418 days of active duty he served 
while enrolled at USUHS instead the days are included in block 
12e as total prior inactive service.  This alignment is 
inappropriate because 10 USC states that medical students at 
USUHS shall serve on active duty in the grade of second 
lieutenant.  Title 10 USC. 101.D.1 and 37 USC. 101.8 clearly 
define the definition of “active duty” when this term is used in 
the respective statutes.  

4. Title 10 USC 101.D.3 and 37 USC 101.20 define the term 
“active service” to mean service on active duty in each of the 
respective statutes.  Based on the clear definitions provided in 
the statute, it is inappropriate for the Air Force to label 
“inactive service” a period on active duty which the statute 
clearly defines as “active service.”

5. He understands the 418 days he served at USUHS are not 
creditable in determining eligibility for retirement or in 
computing years of service credible for the purpose of computing 
basic pay under 37 USC 205, IAW 10 USC 2126.A.  The fact that 
this service is not credible for pay or retirement eligibility 
does not change the nature of his service from “active service” 
to “inactive service” as these terms are clearly defined in the 
federal statutes. 

The applicant's complete submission, with attachments, is at 
Exhibit A.

_________________________________________________________________

STATEMENT OF FACTS:

On 4 Apr 04, the applicant signed a USUHS Military Service 
Contract.  Paragraph 17 states that “while in the program, 
officers are not on the active duty roster of any service and, 
consequently, are not eligible for promotion; moreover, such 
service is not counted: a) In determining eligibility for 
retirement, other than by reason of a physical disability 
incurred while on active duty as a member of the program and b) 
In computing years of service creditable for basic pay.”  

On 2 Jun 04, the applicant entered EAD.  On 6 Aug 04, he was 
administered the Oath of Office as a Reserve Officer in the 
Medical Service Corps (MSC) as a participant in USUHS.  

On 28 Sep 05, he was disenrolled from USUHS student status and 
immediately entered EAD as a regular officer placed back on 
regular active duty.  

_________________________________________________________________

AIR FORCE EVALUATION:

AFPC/DPSIPV recommends denial.  DPSIPV states that according to 
10 USC, section 2126 the applicant will not be given active duty 
credit on his DD Form 214 because time spent in USUHS is not 
counted in determining eligibility towards retirement.  
Furthermore, Title 10 USC section 2114 states that “USUHS 
students are appointed as regular officers and serve on “active 
duty” while in school.  However, there is a distinction between 
active duty and the active duty list (ADL).  In Title 10, 
section 101(b)(13), the term “ADL” means a single list for the 
Army, Air Force, Marine Corps or Navy (required to be maintained 
under Title 10, section 620), which contains the names of all 
officers of that armed force, other than officers described in 
Title 10, section 641, who are serving on active duty.  

Included in the list in Title 10, section 641(5) of members 
excluded from the ADL are students at USUHS.  In addition, Air 
Force Instruction 36-2604, Service Dates and Dates of Rank, 
defines EAD for the purpose of determining service dates as duty 
on the ADL of an armed service for 90 days or more.  

DPSIPV states that based on law, time served as a member in 
USUHS is not creditable service for retirement eligibility.  
Therefore, the applicant is not eligible to receive active duty 
credit towards his Total Active Federal Military Service 
(TAFMS).  Furthermore, since members in USUHS are excluded from 
the ADL, the applicant’s EAD time (continuous active service) 
began upon transfer from student status to regular active duty 
status

The complete DPSIPV evaluation, with attachments, is at Exhibit 
B.

_________________________________________________________________

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant states that the DPSIPV advisory opinion fails to 
address, in any meaningful way, the central legal issues of his 
case; namely is the active duty service performed while a 
commissioned officer at USUHS active service IAW the definition 
found in 10 USC 101.D.3.  He states that the answer is clear 
when one applies the principle that statutes are to be 
interpreted using the ordinary language found therein, unless a 
statute explicitly defines some of its terms otherwise.  

The applicant states that 10 USC 101.D.3 defines the term 
“active service” to mean service on active duty or full-time 
National Guard duty.”  The statute indicates that any period 
which it defines as “active duty” should be considered active 
service.  What the statute does not say is that active service 
is defined as service on the ADL.  The language in the statute 
is explicit and should be interpreted as such.  

The applicant states that the advisory opinion attempts to 
confuse this clear distinction by suggesting that only active 
duty which is accrued while on the ADL should be counted as 
active service.  This interpretation is not supported by the 
statute.  In fact, 10 USC 101(b)(13) identifies that the ADL 
will include all officers of that armed force who are serving on 
“active duty” other than those officers identified in section 
641, in which USUHS students are identified.  Contrary to 
proving the contention provided by the advisory opinion, this 
passage in fact supports his case in its acknowledgement that 
USUHS members are not on the ADL, but are still on active duty.  
The controlling factor in whether a period of service is 
considered “active service” IAW Title 10 is whether that service 
is defined as “active duty” in the statute, and has absolutely 
nothing to do with whether that service is included on the ADL.  

The applicant asserts it inappropriate for the Air Force to 
characterize a period of service which the statute identifies as 
“active duty” and therefore by extension defines “active 
service” as “inactive service” on his DD Form 214.

Furthermore, the applicant asserts the advisory opinion is an 
incorrect interpretation of the service credit exclusions found 
in 10 USC 2126.  He acknowledged that active service performed 
at USUHS was not creditable for the purposes of determining 
retirement eligibility or computing basic pay.  His request 
specifically identified that the Air Force correctly does not 
count this time in determining retirement or pay computations.  
However, the Air Force is incorrect in insisting that this 
somehow transforms that time into inactive service, or that this 
somehow authorizes the creation of a break in active duty 
service on the DD Form 214 where one does not actually exist.  

The applicant states that he stands to be damaged by the current 
presentation of information on his DD Form 214.  

The applicant’s complete response is at Exhibit D.

_________________________________________________________________

ADDITIONAL AIR FORCE EVALUATION:

SAF/MRB Legal Advisor recommends approval.  MRB states that the 
applicant is entitled to have his time spent while enrolled at 
USUHS listed as active service, regardless of how it is credited 
for retirement purposes.  

The MRB Legal Advisor states that IAW Department of Defense 
Instruction (DoDI) 1336.01, Certificate of Release or Discharge 
from Active Duty, the DD Form 214 “will provide an accurate and 
complete summation of active military personnel service.”  Block 
12e of the applicant’s DD Form 214 reflects his USUHS time as 
“inactive service,” however; this is an error under the law.  

The MRB Legal Advisor states to avoid the risk of improper 
error, the Board could consider adopting the applicant’s own 
suggestion.  As such, his DD Form 214 could be corrected by 
adding a brief explanation in Block 18, Remarks, similar to the 
one already reflected on his DD Form 214 pertaining to his time 
at the Academy.  

The MRB Legal Advisor states that correcting Block 12d will 
require corrections to other blocks on the DD Form 214.  

The complete MRB Legal Advisory is at Exhibit E.  

_________________________________________________________________

APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

On 10 Jul 13, by electronic message, the applicant states that 
he concurs with the SAF/MRB Legal Advisor’s opinion and does not 
intend to provide rebuttal comments.

The applicant’s complete submission is at Exhibit G.

_________________________________________________________________

THE BOARD CONCLUDES THAT:

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

2.  The application was timely filed.

3.  Sufficient relevant evidence has been presented to 
demonstrate the existence of an error or injustice.  We note 
AFPC/DPSIPV recommends denial and states that based on the law, 
the time the applicant served as a member in USUHS is not 
creditable service for retirement eligibility, nor is he 
eligible to receive active duty credit towards his Total Active 
Federal Military Service (TAFMS).  However, after a careful 
review of the available evidence, we believe relief is 
warranted.  In this respect, we note the MRB Legal Advisor, 
states the applicant’s time spent at USUHS should be reflected 
as active service, regardless of how it is credited for 
retirement purposes, and he should be entitled to a correct DD 
Form 214.  Therefore, to avoid the risk of improper credit, we 
recommend his DD Form 214 be amended in the remarks section or 
applicable blocks as necessary to document his attendance at the 
Uniformed Services University Health Sciences in an active duty 
status from 6 Aug 04 to 28 Sept 05.  In view of the above, we 
recommend his record be corrected to the extent indicated below.

4.  The applicant’s case has been adequately documented and it 
has not been shown that a personal appearance with or without 
counsel will materially add to our understanding of the issues 
involved.  Therefore, the request for a hearing is not favorably 
considered.

________________________________________________________________



THE BOARD RECOMMENDS THAT:

The pertinent military records of the Department of the Air Force 
relating to APPLICANT be corrected to show that his DD Form 214, 
Certificate of Release or Discharge from Active Duty, issued in 
conjunction with his 2 June 2012, release from active duty, be, 
and hereby is, amended in the remarks section or applicable blocks 
as necessary to document his attendance at the Uniformed Services 
University of the Health Sciences in an active duty status, in 
accordance with Title 10, United States Code, Section 2114(b), 
from 6 August 2004 to 28 September 2005, though not creditable for 
retirement under Title 10, United States Code, Section 641. 

________________________________________________________________

The following members of the Board considered AFBCMR Docket 
Number BC-2012-01425 in Executive Session on 27 Aug 13, under 
the provisions of AFI 36-2603:

All members voted to correct the record as indicated.  The 
following documentary evidence was considered:

			Exhibit A.  DD Form 149, dated 13 Apr 12, w/atchs.
			Exhibit B.  Letter, AFPC/DPSIPV, dated 23 May 12, 
			            w/atchs.
			Exhibit C.  Letter, SAF/MRBR, dated 19 Jun 12.
			Exhibit D.  Letter, Applicant, dated 23 May 12 {sic}.
			Exhibit E.  Letter, SAF/MRB, dated 21 May 2013.
			Exhibit F.  Letter, SAF/MRBC, dated 24 May 13,
			Exhibit G.  Email, SAF/MRBC, dated 9 Jul 13.
			Exhibit H.  Email, Applicant, dated 9 Jul 13.




								Panel Chair




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