MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 1 May 2003
         DOCKET NUMBER: AR2002078928


         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. Hubert S. Shaw, Jr.		Analyst

The following members, a quorum, were present:

Mr. Thomas B. Redfern		Chairperson
Ms. Linda D. Simmons		Member
Mr. John T. Meixell		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: Reconsideration of the decision by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR2001056085, dated 27 September 2001, specifically, that service in the Organized Reserve Corps [now known as the U.S. Army Reserve (USAR)] be credited toward retired pay on a "year for year" basis instead of credited on the basis of retirement points.

APPLICANT STATES: In effect, that counsel will present his arguments in support of his request for reconsideration.

Counsel initially reviewed the arguments presented by a retired Army colonel of the Medical Corps [hereafter referred to as the applicant] in his initial application, dated 18 January 2000, to the ABCMR and the decision of the ABCMR on that application which was recorded in Docket Number AR2001056085, dated 27 September 2001:

         "His [the applicant's] retirement orders, number 040-0102, dated 9 February 1999 were incorrect in that the entry for Section 1405 [correctly identified as Title 10 United States Code, section 1405 hereafter identified as 10 U.S.C. 1405] should have been 75%."

         [The applicant's name omitted] "based the computation upon his year for year 3 years, 10 months, and 1 day of Organized Reserve Corps (ORC) Service. This computation yielded 30 years, 10 months, and 28 days of active service."

Counsel then asserted that the ABCMR in its 27 September 2001 decision recognized 27 years 3 months and 28 days of active service, but was unwilling to accept the ORC time as active service on a "year for year" basis, instead treating the time as a points calculation resulting in 3 months and 6 days of credited active service.

Based on new legal argument, counsel and the applicant now ask the ABCMR to reconsider its decision because of the Board's mistake of law. At this point counsel presents the "statutory backdrop" for his contentions.

         "10 U.S.C. [section 1405] became law in September 1981. This section required that years of service be computed by adding active duty service to any service statutorily defined."

Counsel explained that in the applicant's case this resulted in a "baseline" of 22 years and 22 days of active duty service. Counsel further pointed out that that 37 U.S.C. 205 provided for three statutory additional bases for calculating years of service in the applicant's case:

         "37 U.S.C. 205 (a) 7. granted to physicians four years of constructive service for attending medical school.

         37 U.S.C. 205 (a) 8. granted to physicians one year of constructive service for an internship.

         37 U.S.C. 205 (a) 9. granted to all persons credit for service in the ORC."

Counsel then points out that 37 U.S.C. 205 (a) 7 and 8 were proper in this case for calculating the applicant's service under 10 U.S.C. 1405 because 10 U.S.C. 625 (b) (1) specifically saved service under 37 U.S.C. 205 (a) 7 and 8.

Counsel further points out that time served under 37 U.S.C. 205 (a) 9 was not specifically saved because it did not have unique application to physicians. However, counsel asserts that 37 U.S.C. 205 (a) 9 service was "saved by 10 U.S.C. 625 (a) (1) which was a general savings clause.

Counsel then asserts that, although 37 U.S.C. 205 only applies to base pay, the provision of 10 U.S.C. 1405 refers to years of service generally, having, therefore, the effect of incorporating all such prior statutes into its purview.

Counsel contends that the Army has recognized these conclusions because it granted the four years of medical school and the one year of internship and that it granted three months and six days of ORC to the applicant for the purpose of calculating retirement percentage.

Counsel then states that the applicant has taken the position that his ORC time should be "year for year"; however, the Army has only awarded the points accrued for ORC. Counsel points out that, whereas the applicant has submitted that ORC is worth 3 years, 10 months and 1 day in calculating his retirement percentage, the Army says it is only worth 3 months and 6 days. In summary, a comparison of the two positions reveals:

The applicant             Topic                               Army
22 yrs, 0 mos, 22 days            Active Duty               22 yrs, 0 mos, 22 days
5 yrs, 0 mos, 0 days             Medical School   5 yrs, 0 mos, 0 days

& Internship
Based on the summary presented above, counsel points out the only issue here is how to calculate the ORC time. He asserts that 37 U.S.C. 205 (a) 9 refers to "all periods" while a member is in the ORC, then counsel presents his question:

"Does this mean year for year or does it mean points accrued as a reservist under 10 U.S.C. 12733?"

Counsel contends that, if "all periods" means that ORC time is calculated "year for year," then the applicant is correct; however, if "all periods" means points accrued as a reservist under 10 U.S.C. 12733, then the Army is correct.

Counsel then sets forth his arguments in support of calculating time served in the ORC as "year for year":

         "[10 U.S.C. 12733] has been around since 1949. If the drafters of
[37 U.S.C. 205 (a) 9] had desired to define "all periods" as [10 U.S.C. 12733] points for ORC, that could easily have been done. Instead the drafters chose the broader term "all periods" to describe the allocation. A "period" is not contemplated by [10 U.S.C.] 12733. That statute contemplates one day of service garnering one point. In fact, no mention of [10 U.S.C.] 12733 applying to [37 U.S.C.] 205(a)9. is mentioned in 205(a)9.

         That 'all periods' refers to year for year treatment is a reasonable interpretation of the plain meaning of the statute. It further comports with the mandate of 10 U.S.C. 1401 which essentially provides that a retiring service member be given the best deal available. In this case the best deal is recognizing the ORC on a year for year basis. There is no prohibition to do this. PERSCOM's memorandum of 10 May 01 was silent on [the applicant's name omitted] service in ORC. PERSCOM did not say that year for year ORC was specifically excluded by statute."

In concluding his argument counsel contends:

         "Accordingly, statute and equity demand that the interpretation of law most favorable to [the applicant's title and last name omitted] be employed. Relief should be granted."

NEW EVIDENCE OR INFORMATION : Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the decision of the ABCMR in its consideration of Docket Number AR2001056085, dated 27 September 2001.

By application, dated 18 January 2000, the applicant, without counsel at that time, requested the ABCMR to correct his records to show his service

calculated under 10 U.S.C. 1405 as "30 years, 10 months and 23 days" instead of "27 years, 3 months and 28 days." Up to this point counsel has referred to "30 years, 10 months and 28 days" as the service which should have been credited to the applicant under 10 U.S.C. 1405. Hereafter, counsel refers in his brief to "30 years, 10 months and 23 days" as the total service with which the applicant should have been credited under 10 U.S.C. 1405.

In his 18 January 2000 application, the applicant essentially argued that computation of his Reserve service required correction, as it is based on current law, and not on that law in effect prior to enactment of the Defense Officer Personnel Management Act (DOPMA) effective 15 September 1981. He contended that his case falls under 10 U.S.C. 1401(b) (Use of Most Favorable Formula) and that he was entitled to be paid under the applicable formula that is most favorable to him.

In support of his 18 January 2000 application, the applicant submitted a copy of U.S. Army Medical Department and School (Fort Sam Houston, Texas) Orders 040-0102, dated 9 February 1999, with amending 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 service personnel records concerning computation of service for retired pay, and a statement with citations from the Armed Forces Reserve Act of 1952, and the legislative History for Public Law 96-513.

The arguments and cites from Title 10 and Title 37, United States Code, presented by the applicant and his counsel in his request for reconsideration were for the most part previously considered by the ABCMR in Docket Number AR2001056085, dated 27 September 2001.

Although counsel's legal brief essentially argues the same points set forth by the applicant in his original application to the ABCMR, it presents new argument. Therefore, this panel of the ABCMR [hereafter referred to as "this Board"] will review and address the new arguments set forth by counsel on behalf of the applicant.

The applicant's service personnel records show that he was born on 28 May 1937 and 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 on 10 August 1964, and continued to serve until he was released from active duty on 8 August 1966.

The applicant was transferred to the USAR Control Group (Annual Training) effective 9 August 1966. He served in the USAR Control Group (Annual Training) until he was honorably discharged on 15 May 1969.

On 23 May 1979, the applicant was appointed as a USAR major in the Medical Corps and entered active duty on that same date. He continued to serve on active duty until he was retired from active duty by reason of reaching age 62 in the rank of colonel/pay grade O-6 on 31 May 1999 and placed on the Army of the United States Retired List effective 1 June 1999.

The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the authority for his separation from active duty was voluntary retirement per paragraph 6-14c(1) of Army Regulation 600-8-24 (Officer Transfers and Discharges). The applicant's retirement orders show that the statutes authorizing his retirement were 10 U.S.C. 1251 (Retirement for age) and 10 U.S.C. 1370 (Rule for retirement in highest grade held satisfactorily).

The periods of service under discussion by the applicant and his counsel are the applicant's Reserve service from 25 March 1963 to 9 August 1964 and from 9 August 1966 to 15 May 1969.

A chronological listing of retirement points for the applicant shows that for the retirement year (RY) 25 March 1963 to 24 March 1964 the applicant did not perform any inactive duty training or annual training. During the RY 25 March 1967 to 24 March 1968, the applicant received credit, 30 retirement points, for attendance at 30 of 48 inactive duty training periods and 15 retirement points for attendance at 15 days of annual training. During the RY 25 March 1968 to 24 March 1969, the applicant received 8 retirement points for attendance at 8 of 48 inactive duty training periods and did not attend annual training. For the RY 25 March 1969 to 15 May 1969 the applicant did not perform inactive duty training or annual training. For the period 16 May 1969 to 22 May 1979, the applicant had no military status.

The applicant's DA Form 7301-R (Officer Service for Computation of Retirement) shows that he received 96 retirement points during his periods of Reserve service based on membership, inactive duty training, and annual training.

The DA Form 7301-R shows the applicant's total service as of 31 May 1999. This form shows on line 37 (Active Service) the entry, 22 years, and 22 days. Line 39 (Retirement Points After 1 June 1958) contains the entry 3 months and 6 days. Line 40 (Medical and/or Dental School and Internship) contains the entry 5 years, 0 months, and 0 days. Line 41 (Total 1405 Service) shows the sum of all the foregoing entries which is 27 years, 3 months and 28 days.

The applicant and his counsel contend that, instead of receiving 3 months and 6 days of service credit based on 96 retirement points earned, he should have received credit for 3 years, 10 months and 1 day, thereby resulting in " Total 1405 Service" of "30 years, 10 months, and 23 days."

Title 10, United States Code, Section 1405 (Years of Service) governs computation of years of service for retired pay purposes. This provision of law states that for the purposes of computation of the years of service of a member of the armed forces under a provision of this title, the years of service of the member are computed by adding:

(1) his years of active service;

(2) the years of service not included in clause (1) with which he was entitled to be credited on 31 May 1958 in computing his basic pay;

(3) the years of service not included in clause (1) or (2) with which he would be entitled to be credited under section 12733 of this title if he were entitled to retired pay under section 12731 of this title.

Title 10, United States Code, Section 12731 is found in Chapter 1223 (Retired Pay for Non-Regular Service). Section 12731 states age and service requirements for retired pay for non-regular service. Section 12731(a) states: “Except as provided in subsection (c), a person is entitled, upon application, to retired pay if the person-

         (1) is at least 60 years of age;

         (2) has performed at least 20 years of service computed under section 12732 of this title;

         (3) performed the eight years of qualifying service while a member of any category named in section 12732(a)(1) of this title, but not while a member of a regular component, the Fleet Reserve, or the Fleet Marine Corps Reserve; and

         (4) is not entitled, under any other provision of law, to retired pay from an armed force or retainer pay as a member of the Fleet Reserve or the Fleet Marine Corps Reserve.”

Title 10, United States Code, Section 12732 also governs entitlement to retired pay for non-regular service. Section 12732(a)(1) provides for computation of the years of service before 1 July 1949 in specified components. Section 12732a (2) provides for computation of years of service, after 1 July 1949, in which the person has been credited with at least 50 points on the following basis:

         (A) One point will be credited for each day of--

         (i) active service; or


         (ii) full time service under sections 316, 502, 503, 504, and 505 of Title 32 while performing annual training duty or while attending a prescribed course of instruction at a school designated as a service school by law or by the Secretary concerned; if that service conformed to required standards and qualifications.

         (B) One point for each attendance at a drill or period of equivalent instruction that was prescribed for that year by the Secretary concerned and conformed to the requirements prescribed law, including attendance under section 502 of title 32.

         (C) Points at the rate of 15 per year will be credited for membership--

                  (i) in a reserve component of an armed force.

                  (ii) in the Army or Air Force without component;

         (iii) in any other category covered by subsection (a) (1) except
a regular component.

Title 10, United States Code, Section 12733, provides for computation of retired pay for non-regular service and that for the purpose of computing retired pay under this chapter, the person’s years of service and any fraction of such a year are computed by dividing 360 into the sum of the following:

         1) The person’s days of active service;

         2) The person’s days of full-time service under sections 316, 502, 503, 504, and 505, of Title 32 while performing annual training duty or while attending a prescribed course of instruction at a school designated as a service school by law or by the secretary concerned;

         3) One day for each point credited to the person under clause (B), (C), or (D) of section 12732(a)(2) of this title but not more than 60 days in any one year of service before the year of service that includes September 23, 1996, and not more than 75 days in any subsequent year of service;

         4) 50 days for each year before July 1, 1949, and proportionately for each fraction of a year, of service (other than active service) in a reserve component of an armed force, in the Army or the Air Force without component, or in any other category covered by section 12732(a)(1) of this title, except regular component.



Title 10, United States Code, Section 3991 is found in Chapter 371 (Computation of Retired Pay). Section 3991(a)(1) (Formula) states that the monthly retired pay of a member entitled to such pay under this subtitle is computed by multiplying--

         (A) the member's retired pay base (as computed under section 1406(c) or 1407 of this title), by

         (B) the retired pay multiplier prescribed in section 1409 of the title for the number of years credited to the member under section 1405 of this title.

Title 10, United States Code, Section 1406c is found in Chapter 71 (Computation of Retired Pay). Section 1406c governs the retired pay base (final basic pay) for members who first became members before 8 September 1980 and who are voluntarily retiring.

Title 10, United States Code, Section 1406c (Voluntary Retirement for Members of the Army) specifies that an officer who is retired under section 3991 will have his or her retired pay calculated by 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.

Title 10, United States Code, Section 1407 governs the retired pay base (36 month average) for members who first became members after 7 September 1980 and who are voluntarily retiring. This section specifies that an officer retired under any provision of law other than section 1204 or section 1205 or section 12731 of this provision will have retired pay calculated on a retired pay base or retainer pay base which is the high three average for regular service. Essentially, the law provides that the retired pay base or retainer pay base is the highest 36 months (whether or not consecutive) of basic pay to which the service member was entitled out of all the months of active service divided by 36.

Title 10, United States Code, Section 1401(a) (Computation of retired pay) governs computation of retired pay for disability, nonregular service, warrant officer and Defense Officer Personnel Management Act retirement based on a table contained in Section 1401. The chart shows four formulae [1, 2, 4, and 5] which govern retired pay computations using the retired pay base under 10 U.S.C. 1406(b) or 1407 for soldiers retiring with disability (Formulae Number 1 and 2), for warrant officers Formula Number 4) and for regular officers in the ranks of lieutenant colonel through major general and regular officers at age 62 and appropriate exceptions (Formula Number 5).

Title 10, United States Code, Section 1401(b) states that if a person would otherwise be entitled to retired pay computed under more than one formula of the table in subsection (a) or of any other provision of law, the person is entitled to be paid under the applicable formula that is most favorable to him.
Title 37, United States Code, Section 205 governs the computation of the basic pay of a member of a uniformed service in pertinent part as follows:

         Section 205(a)(7) provided that the basic pay of 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 will computed by adding four years;        

         Section 205(a)(8) provided that the basic pay of a medical officer named in clause (7), above, who has completed one year of medical internship or the equivalent thereof will be computed by adding one year in addition to the four years prescribed by clause (7).

         Section 205(a)(9) provided that all of the following periods of service will also be used in computing basic pay:

         (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 Officers' Reserve Corps or the Organized Reserve Corps.

Title 10, United States Code, Section 611 governed convening of selection boards to recommend promotion of officers on the active duty list and to recommend officers for continuation on active duty and early retirement. Under Historical and Statutory Notes for Section 611 the following reference appears and is cited in pertinent part:

"SAVINGS PROVISION FOR CONSTRUCTIVE SERVICE PREVIOUSLY GRANTED

Sec. [Section] 625 (a) the amendments made by this Act do not affect the crediting of years of service to any person who on the day before the effective date of this Act [Sept. 15, 1981]…

         (b)(1) Any officer who on the effective date of this Act [Sept 15, 1981] is an officer of the Army or Navy in the Medical or Dental Corps of his armed force, as an officer of the Air Force designated as a medical or dental officer, or an officer of the Public Health Service commissioned as a medical or dental officer is entitled to include the years of service creditable to him for the computation of basic pay and retired pay the years of service creditable to him for such purposes under clauses (7) and (8) of section 205(a) of title 37, United States Code [section 205(a) of Title 37, as in effect on the day before the effective date of this Act [Sept. 15, 1981]."

Paragraph 2-4 of Army Regulation 140-185 (Training and Retirement Point Credits and Unit Level Strength Accounting Records) states the criteria for awarding retirement points. The regulation provides that one retirement point is awarded for each calendar day a person is on active duty for training (ADT), initial active duty for training (IADT), involuntary active duty for training (involuntary ADT), and annual training (AT).

Paragraph 2-4 of Army Regulation 140-185 provides for award of retirement points for inactive duty training (IDT) under the four-hour rule, the two-hour rule, and the two/eight-hour rule. Essentially these rules provide that one point is awarded for each scheduled 4-hour period of IDT with a maximum of two points in one calendar day. Under the two hour rule, a retirement point may be awarded for a two-hour or greater period, not to exceed a maximum of one point in one calendar day. Under the two/eight-hour rule, one point may be authorized for a two-hour or greater period; however, award of a second point in the same day requires additional training to bring the total up to a minimum of eight hours. No more than two points may be awarded in the same calendar day under the two/eight-hour rule.

Army Regulation 140-185 (Training and Retirement Point Credits and Unit Level Strength Accounting Records) and the Department of Defense Instruction (DODI) 1215.7 (Service Credit for Reserve Retirement), dated 1 March 2001, limits the maximum number of Reserve retirement points that can be credited each year for the total of inactive duty for training (IDT) points, plus extension courses points, plus membership points. Prior to the date 23 September 1996, the retirement points cap rule was 60 points per year. For the period 23 September 1996 through 30 October 2000, the retirement points were limited to 75 points per year. From 31 October 2000 to the present, the retirement points limit is 90 retirement points per year.

Army Regulation 15-185 sets forth the policy and procedures for the ABCMR. It provides that, if a request for a reconsideration is received within one year of the prior consideration and the case has not been previously reconsidered, it will be resubmitted to the Board if there is evidence (including but not limited to any
facts or arguments as to why relief should be granted) that was not in the record at the time of the Board’s prior consideration. The staff of the Board is authorized to determine whether or not such evidence has been submitted.

DISCUSSION : Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, advisory opinions, and applicable law and regulations, it is concluded:
1. This Board considered all matters set forth by counsel on behalf of the applicant and reviewed the previous decision of the ABCMR in Docket Number AR2001056085, dated 27 September 2001.

2. This Board considered the contention by counsel that the applicant's service in the ORC should have been credited for retired pay purposes under 10 U.S.C. 1405 on a "year for year" basis instead of based on retirement points earned.

3. This Board considered the two arguments, as restated below, set forth by counsel in support of his contention regarding "year for year" credit for ORC service.

         a. The drafters of 37 U.S.C. 205 (a)(9) did not define service in the ORC as points under 10 U.S.C. 12733. Rather, they defined ORC service as "all periods" and there is no mention of 10 U.S.C. 12733 applying to 37 U.S.C. 205 (a) 9.

         b. Defining "all periods" to mean "year for year" is a reasonable interpretation of the plain meaning of 37 U.S.C. 205 (a)(9), such interpretation comports with the mandate of 10 U.S.C. 1401 which essentially provides that a retiring service member be given the best deal available, and therefore, the best deal is to recognize the ORC on a year for year basis. Furthermore, there is no prohibition against calculating ORC service on a "year for year" basis since the 10 May 2001 advisory opinion by the U.S. Total Army Personnel Command (PERSCOM) in Docket Number AR2001056085, dated 27 September 2001, was silent on the applicant's service in the ORC and did not state that " year for year ORC was specifically excluded by statute."

4. The Board noted the applicant was separated from active duty on 31 May 1999 and placed on the Army of the United States Retired List effective 1 June 1999. Thus, this Board determined the applicant's retirement and calculation of his retired pay was based on regulation and law in effect at the time: specifically, retirement under 10 U.S.C. 1251 (Retirement for age), 10 U.S.C. 1370 (Rule for retirement in highest grade held satisfactorily), and paragraph 6-14c(1) (Voluntary Retirement) of Army Regulation 600-8-24 (Officer Transfers and Discharges); and entitlement to retired pay governed by computations stated in 10 U.S.C. 3991 (Computation of retired pay), 10 U.S.C. 1406c (Voluntary Retirement for Members of the Army) and 10 U.S.C. 1405 (Years of Service).

5. Counsel's contention that the applicant's retired pay should be based on credit for service in the ORC on a "year for year" basis is without merit for the following reasons:

         a. The applicant's service in the ORC required participation in inactive duty training period and participation in annual training, essentially attendance at 4 scheduled drill periods on a weekend each month and 15 days of annual training. Evidence of record shows that the applicant received credit for attendance at only 38 drill periods and 15 days of annual training during this period of 3 years, 10 months and 1 day of service in the ORC. Therefore, counsel's argument that the applicant is entitled to "year for year" credit for service in the ORC is without a basis in terms of the time actually served.

         b. Regulation shows that historically one retirement point has been awarded for each day of active duty or while in an active Reserve status for active duty for training, initial active duty for training, involuntary active duty for training, and annual training.

         c. Regulation also shows that historically one point has been awarded for each four hour inactive duty training period not to exceed two points per calendar day and that a retirement point could be awarded under the two-hour rule not to exceed one per calendar day and one point under the two-eight-hour rule not to exceed two points per calendar day.

         d. 10 U.S.C. 12733 provides that, for the purpose of computing retired pay for non-regular service under this chapter, the person’s years of service and any fraction of such a year are computed by dividing 360 into the sum of the person's days of active service; days of full-time service under sections 316, 502, 503, 504, and 505, of Title 32 while performing annual training duty or while attending a prescribed course of instruction at a school designated as a service school by law or by the secretary concerned; and one day credited for each retirement point.

         e. Contrary to the contention by his counsel that the note [referred to as Section 625] appended to 10 U.S.C. 611 saves the applicant's time served in the ORC, Section 625 saves only the constructive service for medical school and internships. It is further noted that the applicant's service in the ORC was actual service and not constructive service, therefore not governed by this provision of law. Finally, this note does not prescribe or otherwise infer that service in the ORC prior to 15 September 1981 is granted on a "year for year" basis or in any way contravenes any provision of law under which the applicant was in fact retired or governed computation of retired pay at the time of his separation from active duty on 31 May 1999.

         f. Clearly, there is no provision of law or regulation which grants "year for year" credit for Reserve service unless the applicant actually accrued one retirement point each 365 calendar days of service on active duty for training, initial active duty for training, involuntary active duty for training, and/or annual training. Records show that he did not perform such service.


         g. Regulations provide that credit for performance of inactive duty training such as that performed by the applicant is recognized with one retirement point awarded for attendance at each authorized drill period. Law provides that in calculating qualifying service for retirement one day of credit is granted for each retirement point earned. The PERSCOM advisory opinion explains all of the calculations for service credited under 10 U.S.C. 1405 including retirement points. The fact that PERSCOM did not state that "year for year ORC was specifically excluded by statute" is not a basis for granting "year for year" service credit as requested, particularly since the law governing this matter mandates otherwise.

         h. The applicant's military records show that, during his service in the ORC, he was credited with 96 retirement points which under 10 U.S.C. 12733 equated to 3 months and 6 days of service under 10 U.S.C. 1405.

         i. Based on subparagraphs 5a through h, above, there is no evidence of error or injustice in the computation of the applicant's service for retired pay purposes including his service in the ORC.

6. This Board considered counsel's argument that the applicant should be granted 3 years, 10 months and 1 day of service credit for retirement purposes based on 10 U.S.C. 1401(b) as follows:

         a. This Board noted that counsel previously stated that the issue in this case is whether service in the ORC as defined in 37 U.S.C. Section 205a(9) is "year for year" or based on retirement points. However, counsel now argues that the applicant should be granted 3 years, 10 months and 1 day of ORC service credit for retirement purposes based on 10 U.S.C. 1401(b) because "[i]t comports with the mandate of 10 U.S.C. 1401 which essentially provides that a retiring service member be given the best deal available. In this case the best deal is recognizing the ORC on a year for year basis."

         b. This Board noted that Section 1401(b) specifically addresses computation of retired pay in accordance with the four formulae displayed on the table found at 10 U.S.C. 1401(a), not the computation of service credit which is the primary issue originally presented by counsel.

         c. Further, this Board noted the determination as to which one of the four formulae on the table at Section 1401(a) is most favorable to the applicant is not in question. The applicant was separated under 10 U.S.C. 1251 (regular commissioned officers at age 62 which is included under Formula Number 5) as specified in his orders and none of the other options in that table applied to him. Specifically, Formula 1 and 2 apply to personnel separated with disability. Formula 4 applies to only warrant officers.

         d. This Board also noted that the applicant's retired pay was calculated under Formula Number 5. Based on subparagraphs 6a through d, above, there is no evidence which shows that the applicant qualified to have his retired pay calculated under Formula Numbers 1, 2, or 4. Therefore there is no basis for his calculating his retired pay under any of the other formulae listed on the chart at 10 U.S.C 1401(a) as more advantageous to him.

         e. Since the formulae listed on the chart at 10 U.S.C. 1401(a) do not provide a basis for calculation of qualifying service and since there is no basis to calculate retired pay using Formulae Numbers 1, 2, or 4 as more advantageous to the applicant, counsel's argument for relief on these grounds is without merit.

7. 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.

8. Therefore, the overall merits of this case, including the latest submissions and arguments, are insufficient as a basis for this Board to reverse the decision of the ABCMR recorded in Docket Number AR2001056085, dated 27 September 2001.

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

__JTM___ __LDS___ __TBR__ DENY APPLICATION



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

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INDEX

CASE ID	AR2002078928
SUFFIX
RECON
DATE BOARDED	20030501
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY	MR CHUN
ISSUES 1.	338.0000.0000
2.	113.0000.0000
3.
4.
5.
6.