MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 27 September 2001
         DOCKET NUMBER: AR2001056085

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Ms. Joyce A. Wright		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor, Jr.		Chairperson
Mr. Thomas E. O’Shaughnessy		Member
Mr. Eric N. Andersen		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

APPLICANT REQUESTS: In effect, correction of Orders Number 040-0102, dated 9 February 1999, to show the entry “Section 1405: 30 years, 10 months, 23 days” instead of the entry “Section 1405: 27 years, 3 months, 28 days.”

APPLICANT STATES: That computation of his Reserve time requires correction, as it is based on current law, and not on that in effect prior to the Defense Officer Personnel Management Act (DOPMA) (15 September 1981), which applies to him, and affects his retired pay. Title 10, U. S. Code (USC), section 1401(b), “use of most favorable formula” states “if a person would otherwise be entitled to retired pay computed under more than one formula of the table in subsection (a) or any other provision of law, the person is entitled to be paid under the applicable formula that is most favorable to him”. In support of his application he submits a copy of Orders 040-0102, dated 9 February 1999, a copy of orders 068-0104, dated 9 March 1999, two DD Forms 214 (Certificate of Release or Discharge from Active Duty), dated 8 August 1966 and 31 May 1999, several documents from his personnel file, a copy of the Armed Forces Reserve Act of 1952, and a copy of the Legislative History for Public Law 96-513.

EVIDENCE OF RECORD: The applicant's military records show he was appointed as a Reserve commissioned officer in the rank of first lieutenant on 25 March 1963, in the Medical Corps.

He was ordered to active duty (AD) on 10 August 1964, and continued to serve until he was released from AD on 8 August 1966. He was transferred to the USAR Control Group (Annual Training) on 9 August 1966, and continued to serve until he was honorably discharged on 15 May 1969.

He was appointed as a USAR major in the Medical Corps on 23 May 1979.
He continued to serve until he was placed on the Army of the United States Retired List effective 1 June 1999, in the pay grade of COL/0-6 on 31 May 1999.

The applicant provided a copy of his DA Form 7301 (Service Computation for Retirement, dated 14 October 1998, which shows in item 22 (Total Service for Basic Pay Purposes) the entry “30 10 23” (30 years, 10 months, and 23 days),
item 23 (Total Service For Percentage Purposes (1405 Service)) the entry
“29 03 14” (29 years, 3 months, and 14 days) and item 41 (Total 1405 Service)
the entry “27 02 29” (27 years, 2 months, and 29 days).

The applicant also provided a copy of a DA Form 7301-R, dated 8 December 1998, which shows in item 22 (Total Service For Basic Pay Purposes) the entry “30 10 23” (30 years, 10 months, and 23 days), item 23 (Total Service For Percentage Purposes (1405 Service)) the entry “27 3 28” (27 years,
3 months, and 28 days), and in item 41 (Total 1405 Service) the entry “27 3 28”
(27 years, 3 months, and 28 days).

Headquarters US Army Medical Department Center & School and Fort Sam Houston Orders 040-0102, dated 9 February 1999, shows the entry “Section 1405: 27 years, 3 months, 28 days”, the entry “Basic pay: 30 years, 10 months, 23 days”, the entry “Date initially entered military service: 10 August 1964”, and the entry “PEBD (pay entry basic date): Not applicable.”

Headquarters US Army Medical Department Center & School and Fort Sam Houston Orders 068-0104, dated 9 March 1999, amended orders 040-0102, dated 9 February 1999, to show that the applicant initially entered military service on “25 March 1963” instead of “10 August 1964” and to show his PEBD
as “8 July 1968” instead of “Not applicable.”

The applicant provided a copy of a memorandum from Brooke Army Medical Center, Fort Sam Houston, Texas, dated 13 April 1999, subject: Year for Year Credit for Reserve Service, which was prepared by the Assistant Center Judge Advocate (JA). The JA stated that in his opinion, Medical Corps officers who served prior to 1981, in the Organized Reserve Corps (Now Army Reserve) were entitled to year-for-year credit for their service. Initially, for the purpose of computing basic pay, years of service included service in the Organized Reserve Corps (later redesignated the Army Reserve). The JA also stated that under Title 10, USC, section 1405 (1980), years of service did not appear to include service in the Army Reserve. Section 1405 had a transition provision to prevent extinction or premature termination of rights, duties, penalties, or proceeding that existed or were begun prior to the effective date of Public Law 96-513. The JA concluded that the applicant should be given year-for-year credit for his service in the Organized Reserve Corps.

The applicant provided a copy of a memorandum from the Medical Command JA to the US Total Army Personnel Command (PERSCOM), Chief, Retirements and Separations Branch, dated 13 April 1999. The JA stated that he had reviewed the relevant statues relating to the applicant’s retirement pay. He also stated that it was his opinion that Title 10, USC, section 1405 was grandfathered, and does not apply to officers such as the applicant who were commissioned before September 1981. The JA concluded that the applicant was entitled to credit for his service in the Reserve Officers Corps under Title 37, United States Code, section 205 (a)(7)-(9).

The applicant provided a copy of a memorandum from the PERSCOM Command Judge Advocate, dated 1 June 1999. The memorandum was in response to the applicant’s request for a legal opinion regarding credit that he should receive for Reserve service. The Command Judge Advocate reviewed the memorandum from the Medical Command Assistant Center Judge Advocate, and the statutes discussed therein.
It was determined that the applicant was entitled to 5 years of constructive credit for medical school/internship and that this constructive credit was for the computation of basic pay and retired pay only.

The applicant provided a copy of his Chronological Statement of Retirement Points (Summary Point/Inquiry/Update), dated 26 April 2000. This document indicated that the applicant had completed 24 years of qualifying service for retirement purposes and over 22 years of active duty service.

The applicant provided a copy of a letter from the Defense Finance and Accounting Service (DFAS), dated 26 November 2000. This letter responded to the applicant’s letter, dated 27 June 2000, which stated that a review of his retired pay showed the following: Total Service “30 years, 10 months, and 23 days”, Active Service “22 years, 00 months, 22 days”, which is equal to his points of 8,174, and “27 years, 3 months, and 28 days” under Title 10, USC, as constructive service. It also stated that the applicant had been credited with 5 years, 3 months, and 6 days of service above his total Active Service of 22 years, 0 months, and 22 days. Another letter was also provided by DFAS, which was undated, and stated that his Service for Percent was “27 years, 3 months, and 28 days”, and Service for Basic Pay “30 years, 10 months, and 23 days” was correct. It further stated that orders were needed to make any changes.

In the processing of this case an advisory opinion was provided by PERSCOM, Chief, Retirements and Separations Branch, dated 10 May 2001. PERSCOM stated that the applicant felt that his 1405 service should be “30 years, 10 months, and 23 days”, the same as his service for pay purposes. It had been determined that the applicant was credited with the correct 1405 service. The 1405 service is the total Active Federal Service (22 years, 0 months, and 22 days), plus retirement points after 1 June 1958 (96 points converted into 3 months and 6 days), and constructive service credit for Medical School (4 years) and Internship (1 year). This equals “27 years, 3 months, and 28 days” for 1405 service.

The applicant was provided a copy of this opinion for possible comment. In his rebuttal the applicant stated that his original request for correction included two separate opinions from Army lawyers, which had been discussed with a staff member of the Board. Copies of documentation were provided to support his contention that his 1405 service, as computed by a staff member of PERSCOM, Retirements and Separations Branch, was indeed incorrect. It did not take into account Federal Law, as in effect in 1981, at the time of DOPMA, which included clear Savings Provisions, applying to his service in the Active Reserve as a Medical Officer, having graduated Medical School, and completed an Internship.


At the request of a staff member of the Board, he included his computation of service from PERSCOM, which he is contesting, as well as the computation completed by a staff member at Fort Sam Houston, Texas. It remains his position, that an accurate computation under Federal Law, as explained in the enclosures, entitles him to full year for year credit, in the Reserve, during the period covered, which antedates DOPMA, and served as a part of a 6 year obligation, under the Doctor Draft, prior to the abolition of the draft, and the institution of the All Volunteer Force, and also prior to the time that he was entitled to retired pay. This material was originally provided by him, directly to PERSCOM, Chief, Retirements and Separations Branch, prior to his retirement, and the Board, at the time he originally filed his request.

Additionally, he has received telephone calls from the Chief, Retirements and Separation Branch prior to his retirement, and from a staff member of PERSCOM, both of whom indicated by phone that he was entitled to full credit. He has enclosed a tape of the telephone message from the, Chief, Retirements and Separation Branch, that he received prior to retirement. A tape of this message is included in his original request to the Board.

Title 10, USC, section 1401 (b), pertains to the use of the most favorable formula. It states that if a person would otherwise be entitled to retired pay computed under more than one formula or of any other provisions of law, the person is entitled to be paid under that applicable formula that is most favorable to him.

Title 10, USC, section 3991, formula B, specifies that an officer who is retired under section 3911 will have his or her retired pay calculated on multiplying the monthly basic pay of the officer's retired grade by 2 1/2 percent of the years of service credited to the officer under section 1405.

Section 1405 outlines what types of service are creditable for calculating retired pay for members of the Regular Army and Army Reserve. In the applicant's case, section 1405 requires his retired pay to be calculated on his years of active service and the service he performed under Title 10, section 12733, and Title 37, section 205a(7)- (9).

Title 37, section 205a(7) - (9) provides for an officer of the Medical Corps or Dental Corps of the Army or Navy, an officer of the Air Force designated as a medical or dental officer of the Public Health Service commissioned as a medical or dental officer-four years; for a medical officer named in the above who has completed one year of medical internship or the equivalent thereof-one year in addition to the four years prescribed by all periods (a) on a temporary disability retired list, honorary retired list, or a retired list of a uniformed service; (b) entitled to retired pay, retirement pay, or retainer pay, from a uniformed service or the Veterans Administration, as a member of the Fleet Reserve or the Fleet Marine Corps Reserve; or (c) a member of the Honorary Reserve of the Officer’s Reserve Corps or the Organized Reserve Corps.

Section 12733 service is for Reserve service after 1 July 1949 in which a person is credited with at least 50 retirement points in a retirement year. Credit is given for a person's days of active service, one day for each point awarded for attending unit training assemblies and 15 days per year when the person had membership in the Reserve for 6 months or more in one year. This section also provides for the award of 50 days a year for reserve service performed prior to 1 July 1949, and proportionately for any fraction of a year. The sum of this service is then divided by 360 and the result is the person’s years of service under section 1405.

The applicant provided a copy of the Armed Forces Reserve Act of 1952, Chapter 608, Public Law 476, Part 11, chapter 4, section 245 and Part 111, section 302. Section 245 states, in pertinent part, that all provisions of law applicable to the Organized Reserve Corps or the Air Force Reserve, and to the members thereof, and their dependents and beneficiaries, not consistent with the provisions of this Act, shall be applicable to the Army Reserve and to the Air Force Reserve in this Act, respectively, and to the member thereof, and their dependents and beneficiaries.

Section 302 of this act, states that the Organized Reserve Corps was redesignated as the Army Reserve.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1. The evidence of record shows that the applicant’s service for retirement was calculated twice by PERSCOM which showed no change in his total service for basic pay purposes of 30 years, 10 months, and 23 days. His first calculation of his total service for percentage purposes shows an entry of “29 03 14” (29 years, 3 months, and 14 days) and was corrected to show a total of “27 years, 3 months, and 28 days.” The first calculation of his 1405 service shows a total of

2. Orders were prepared on 9 February 1999, to show that he was credited with a total of “27 years, 3 months, and 28 days” of 1405 service and a total of
“30 years, 10 months, and 23 days” for basic pay based on calculations from his
DA Form 7301, which was prepared by PERSCOM.





3. A letter was prepared by the Medical Command Assistant Center Judge Advocate, dated 13 April 1999, to the applicant. He stated in his opinion, that Medical Corps officers, who serve prior to 1981 in the Organized Reserve Corps
(Now Army Reserve) were entitled to year-for-year credit for their service, but only for the purpose of computing basic pay, and that years of service included service in the Organized Reserve Corps (later redesignated the Army Reserve).
He also stated that the applicant should be given credit for his service in the Organized Reserve Corps.

4. The Board notes the memorandum from the Medical Command JA to PERSCOM, dated 13 April 1999, which stated that relevant statues relating to the applicant’s retirement pay had been reviewed. The JA in his opinion stated that Title 10, USC, section 1405 was grandfathered and did not apply to officers, such as the applicant who was commissioned before September 1981.
Therefore, the applicant was entitled to credit for his service in the Reserve Officers Corps.

5. A legal opinion was prepared by the PERSCOM Command Judge Advocate regarding the applicant’s case. It was determined that the applicant was entitled to 5 years of constructive service credit for medical school/internship, which was for computation of basic pay and retired pay only. The applicant’s DA Form 7301 clearly shows that he was given 5 years of constructive service credit for his medical school/internship.

6. The applicant’s service computation for retirement was reviewed by DFAS on
26 November 2000. DFAS agreed with the calculations of his total service, active service, 1405 service, and constructive service credit, which was prepared by PERSCOM. DFAS concluded that service for percent and service for basic pay were correct and that orders are needed to make any changes.

7. An advisory opinion was provided to this Board by PERSCOM on 10 May 2001. It was noted that there was no comment or reply to his service in the Reserve Officers Corps. Therefore, it was concluded that the application was credited with the correct 1405 service. Based on the foregoing, the applicant is not entitled to correction of orders number 040-0102, dated 9 February 1999, to show the entry of “30 years, 10 months, and 23 days” of 1405 service.

8. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.




9. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__ro___ ___to___ ___ea___ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

CASE ID	AR2001056085
SUFFIX
RECON
DATE BOARDED	20010927
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	19990531
DISCHARGE AUTHORITY	AR
DISCHARGE REASON
BOARD DECISION	GRANT/DENY
REVIEW AUTHORITY
ISSUES 1. 338
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