MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 14 MARCH 2002
         DOCKET NUMBER: AR2001063104

         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
Mr. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Ms. Joann H. Langston		Chairperson
Mr. Walter T. Morrison		Member
Mr. Roger W. Able		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)

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APPLICANT REQUESTS: That his basic entry service date (BESD) and pay entry basic date (PEBD) be changed.

APPLICANT STATES: That his BESD and PEBD should be changed from 4 September 1998 to 12 May 1996 or alternatively 12 May 1997 to be commensurate with others of similar experience.

He states that he was an ROTC scholarship student at Gonzaga University from August 1992 through May 1996, was selected for a Regular Army commission scheduled for 12 May 1996. Prior to commissioning he played a prank on a fellow ROTC classmate resulting in his commissioning being suspended pending the outcome of an investigation into the matter. The investigation was completed in June 1997 and the results concluded that the incident warranted no action against him and that he should be commissioned. The region commander expressed regret that the investigation had taken so long, and informed him that he should not be penalized as a result.

During the course of the investigation he applied for and was accepted to law school and began classes in August 1997. He was informed that delaying active duty while he completed law school would not be a problem and that he could schedule his commissioning at any time, without adversely affecting his original commissioning date. He would just receive an educational delay once commissioned, pending completion of law school. Consequently, he had his swearing in ceremony on 4 September 1998.

His BESD and his commissioning date were different, but because records showed that his BESD was 12 May 1996, his manager in St. Louis used that date as his BESD. However, when he entered active duty he was informed that his BESD was going to be changed to 4 September 1998, the date of his commissioning. This change resulted in a loss of approximately 28 months of service credit for pay purposes. All judge advocates who have completed ROTC receive three years of constructive credit for pay, while he currently receives less than two years of credit, a significant loss in base pay, which will continue to impact him as long as he remains in the military.

He requests that his current BESD be changed back to 12 May 1996, reflecting the intent of the region commander not to penalize him because of the long delay in the investigation. Alternatively, he requests that he receive a BESD similar to his fellow Judge Advocate General (JAG) classmates who also completed ROTC and entered the Judge Advocate General’s Corps. A May 1997 date would also coincide with the time that the region commander approved his commissioning process to go forward.

The applicant included with his request an undated memorandum from a military personnel technician of the Army Reserve Personnel Command at St. Louis who stated that the applicant’s PEBD was incorrectly entered when he was accessed into the data base. The 12 May 1996 date has since been corrected to 4 September 1998.

EVIDENCE OF RECORD: The applicant's military records show:

On 24 September 1998 the Fourth Region (ROTC), Cadet Command, published an order assigning the applicant to Germany, with temporary duty enroute at the Infantry Officer Basic Course at Fort Benning, Georgia, with a reporting date of 4 October 1998 effective upon his acceptance of appointment in the Army Reserve. That order indicated that the applicant had been selected for a Regular Army commission, which had been confirmed by the Senate, and that he would execute the Regular Army oath of office after entry on active duty. It indicated that his date of appointment was 10 May 1996. That order shows that he was a second lieutenant with the Fourth Region (ROTC), Cadet Command, at Fort Lewis, Washington.

On 4 August 2000 the Total Army Personnel Command published an order assigning the applicant, then a first lieutenant Judge Advocate General’s Corps officer, to Fort Bragg, North Carolina, with TDY enroute at Fort Lee, Virginia for processing and training, and then at The Judge Advocate General’s School at Charlottesville, Virginia, prior to reporting to Fort Bragg on 22 January 2001. That order indicated that the applicant should be credited with 3 years of service for the purpose of determining the appointment grade, and that the credit included, if appropriate, 3 years of constructive service for education (law school).

On 24 August 2000 the applicant completed an oath of office (DA Form 71) accepting a Reserve commission in the Army in the grade of first lieutenant.

On 6 November 2000 the Total Army Personnel Command published an order determining that the applicant’s date of rank as a first lieutenant was 17 March 1999.

The applicant completed the Judge Advocate Officer Basic Course on 21 December 2000. He was promoted to captain effective and with a date of rank of 1 April 2001.

In the processing of this case an advisory opinion was obtained from the Total Army Personnel Command. That command stated that whatever date an individual raises his hand and accepts his commission, is the date the individual is commissioned. That date for the applicant is 4 September 1998. That command stated that it had no authority to change the applicant’s commissioning date.

The applicant was furnished a copy of the advisory opinion on 7 November 2001 for his information and possible rebuttal. He failed to respond.

Information obtained from the Defense Finance and Accounting Service on 22 January 2002 revealed that the applicant’s BASD was 17 September 2000 and his PEBD 4 September 1998.

Army Regulation 135-100 provides in pertinent part that a signed oath of office (DA Form 71) is required for appointment in any component of the Army. The execution and return of the oath of office constitutes acceptance of appointment.

The DoD Financial Management Regulation provides instructions for the computation of creditable service, and states in pertinent part that for most members who enter and serve on active duty without a break in service, the basic pay date [for the Army, the PEBD] is the date the member enters active or inactive service. The PEBD is the date from which creditable service for pay is computed.

Army Regulation 600-8-104 prescribe policies, operating tasks, and steps governing the official military personnel file, the military personnel records jacket, the career management individual file, and the Army personnel qualification records. The term, “BESD” (basic enlisted service date) pertains only to enlisted soldiers. The term, “BASD” (basic active service date) is the total active Federal service creditable for retirement. It is the effective date of entry on active duty minus all periods of active Federal service.

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. Although the applicant states that he is requesting that his BESD and his PEBD be changed, he is obviously referring only to his PEBD. The term, “BESD” pertains only to enlisted soldiers. His BASD is the date that he came on active duty, 17 September 2000. It does not appear that he is contesting that date.

2. The applicant accepted his commission on 4 September 1998, completing the oath of office on that date, as he has stated. That date is then his PEBD, and although he has provided a narrative account of his travails concerning his commissioning date, there is no evidence and the applicant has not provided any, of an error in his record or an injustice done him.

3. The applicant has submitted neither probative evidence nor a convincing argument in support of his request.

4. 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 that requirement.

5. 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

__JHL___ __WTM __RWA__ DENY APPLICATION

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

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INDEX

CASE ID	AR2001063104
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020314
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	112.09
2.	231
3.
4.
5.
6.