MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 15 April 2003
         DOCKET NUMBER: AR2002075830

         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
Mrs. Carolyn G. Wade		Analyst

The following members, a quorum, were present:

Ms. Joann H. Langston		Chairperson
Mr. Richard T. Dunbar		Member
Ms. Yolanda Maldonado		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: In effect, that his Pay Entry Basic Date (PEBD) be corrected to account for the time he served in the Delayed Enlistment/Entry Program (DEP).

APPLICANT STATES: That he enlisted in the United States Marine Corps (USMC) DEP on 22 July 1980, thereby establishing his PEBD as 19800722. He entered on active duty on 29 July 1980 and served until honorably separated on 20 May 1983. Following separation, he served in the inactive USMCR (Reserves) and the Army National Guard (inactive) before entering the Army DEP from 25 January 1986 to 20 May 1986. On 21 May 1986, he enlisted in the Regular Army (RA). Only later did he find out that his PEBD was changed to 19801118 because of his time in the Army DEP.

In support of his application, the applicant submitted: a self-authored, two-page statement, dated 2 July 2002; DD Form 214 (Certificate of Release or Separation From Active Duty) for the period ending 20 May 1983; NGB Form 22 (National Guard Bureau Report of Separation and Record of Service) for the period ending 9 July 1985; NGB Form 23 (ARNG Retirement Points Record) for the period 22 July 1984 through 21 July 1985; DD Form 4 (Enlistment Contract and allied documents showing no prior service, dated 25 January1986); two DA Forms 1506 (Statement of Service For Computation of Length of Service) one dated 13 October 1989, and one undated; DA Form 2339 (Application for Voluntary Retirement), dated 28 June 2002; Service Computation For Retirement, 3 pages; Retirement Orders dated 2 July 2002; and Army Regulation 135-91, dated 26 September 2000.

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

He enlisted in the USMCR through the DEP on 22 July 1980 and was discharged on 28 July 1980 to enter the USMC on 29 July 1980. He served until 20 May 1983 when he was honorably separated for completion of required active service. He was credited with 2 years, 10 months, and 21 days of creditable military service and 9 days of lost time. He was transferred to the USMCR, Kansas City, Missouri. He served in the USMCR from 21 May 1983 to 9 July 1984.

On 10 July 1984, the applicant enlisted in the Vermont Army National Guard (VTARNG) and as a Reserve of the Army. He was honorably discharged from the VTARNG on 9 July 1985. He was credited with 1 year of creditable service. It was noted in item 11 (Terminal Date of Reserve/Military Service Obligation, or TDR/MSO) of his NGB Form 22 that his TDR/MSO was 9 July 1985.

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On 25 January 1986, the applicant enlisted in the RA through the DEP. At the time of entry into the DEP, the applicant acknowledged that he understood that he had to report to active duty on 11 March 1986. He also acknowledged that he understood that his service in the DEP was not creditable for pay purposes upon entry into a pay status; however, this period of time would be counted toward fulfillment of his MSO or commitment.

On 11 March 1986, the applicant requested an extension of time in the DEP until 20 May 1986 because he was getting married. The extension was granted and, after 3 months and 26 days in the Delayed Entry Program, he was discharged on 20 May 1986 and entered the Regular Army for 4 years on 21 May 1986. The applicant has continuous military service from 21 May 1986 and is currently serving on active duty. He has an effective retirement date of 31 July 2003.

In the processing of this case, an advisory opinion was obtained from the Office of Policy Liaison and Procedures, Defense Finance and Accounting Service, Indianapolis, Indiana. The opinion stated that the applicant’s request to count his Army DEP service as part of his TDR/MSO from his initial service in the USMC should be disapproved. It was stated that when the applicant enlisted in the United States Army through the DEP his military obligation to the USMC ended. The opinion recommended that that the applicant’s request be denied and that he not be given credit for the period 25 January 1986 through 20 May 1986. The applicant was provided a copy of the advisory opinion for rebuttal.

On 20 August 2002, the applicant faxed to the Board a copy his DD Form 149 (Application for Correction of Military Record); NGB Form 23 (ARNG Retirement Points Record) for the period 22 July 1984 through 21 July 1985; NGB Form 22 for the period ending 9 July 1985; and two copies of his DD Form 214 for the period ending 20 May 1983. However, he did not provide a rebuttal to the advisory opinion.

Army Regulation 135-91 defines the Army National Guard of the United States (ARNGUS) and the United States Army (USAR) service obligations. It prescribes policies and procedures governing the various types of service obligations and participation requirements. Chapter 2 of this regulation defines the different types of service obligations. It states that a statutory MSO is incurred on initial entry into the Armed Forces whether by induction, enlistment, or appointment. Prior to 1 June 1984, most soldiers incurred a 6 year statutory MSO. The Army can terminate the required statutory obligation prior to its fulfillment.

The Department of Defense Financial Management Regulation (DODFMR) stipulates the policy, regulation, and procedures within the area of responsibility of the Under Secretary of Defense. The regulation is applicable to all DOD Components and consists of 15 volumes, including Volume 7A. This regulation provides statutory provisions for entitlements, deductions, and collections, and establishes DOD policy on the pay and allowance of military personnel. It is issued by the Under Secretary of Defense (Comptroller) in coordination with the Director, Defense Finance and Accounting Service. It is issued for the information, guidance, and compliance of all personnel in the administration of military pay and is the sole entitlement implementation by the Military Services. It states, in pertinent part, that:

For enlistments in a Reserve Component under 10 U.S.C. 511(b) or (d), including enlistments under the DEP, that were entered into between January 1, 1985, and November 28, 1989, the period served in the Reserve Component before beginning active duty or an initial period of active duty for training is not creditable

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, it is concluded:

1. 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.

2. The period of time (25 January 1986 through 20 May 1986) that the applicant spent in the Army DEP is not creditable for pay purposes; this was changed by public law during the period 1 January 1985 through 28 November 1989. The applicant knew this when he enlisted in the Regular Army through the DEP. The applicant’s DD Form 4 shows that the applicant was aware that the time he spent in the DEP was not creditable for pay purposes; but was creditable toward the fulfillment of his MSO.

3. An advisory opinion to this Board stated that when the applicant enlisted in the United States Army through the DEP his military obligation to the USMC ended and recommended that he not be given credit for the time he spent in the DEP.

4. The Board also noted that the applicant’s DD Form 22 for the period ending 9 July 1985 shows that his MSO from his initial USMC statutory obligation was terminated on the same date. Therefore, the applicant had no MSO to the USMC when he entered the Army through the DEP.

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___ __rtd___ __ym____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002075830
SUFFIX
RECON
DATE BOARDED	20030415
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	112.0900
2.
3.
4.
5.
6.