| Mr. Carl W. S. Chun | Director | |
| Mr. Joseph A. Adriance | Analyst |
| Mr. Raymond J. Wagner | Chairperson | |
| Mr. Lester Echols | Member | |
| Ms. Margaret V. Thompson | Member |
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests, in effect, reconsideration of his request to correct his retirement eligibility date and that his immediate retirement be directed.
2. The applicant states, in effect, that on 14 July 1997, he was discharged from the Army, under other than honorable conditions (UOTHC). He further states that this Board upgraded his discharge to a general, under honorable conditions discharge (GD) based on errors in his separation processing. At that time, the Army calculated that he was five days short of completing 20 years of active military service, which he claims is an error. He states that he actually completed
20 years of active duty service prior to his separation on 14 July 1997. Thus, he should have been retired instead of being discharged at that time.
3. The applicant claims that by law, all commissioned officers who have completed 20 years of active duty service are eligible to retire and may request to do so in lieu of elimination. He states that a total of 11 days of active military service he accrued during two separate periods of service was not included in his active duty service calculations. A five day active duty training (ADT) period that was recently added to his 10 January 2003 Retirement Points Accounting System (RPAS), Chronological Statement of Retirement Points (ARPC 249-2-E) and six days of travel time from 20 through 25 January 1975. He also claims that once this service is added to his record, he will have obtained the 20 years of active duty service necessary for retirement. He states this does not include other active duty days that are also missing from his record.
4. In support of his application, the applicant provides the enclosed self-authored statement and the following documents: ARPC Form 249-2-E, dated 18 October 2002; Army Reserve Personnel Command (ARPERSCOM) letter, dated
12 December 2002; 11 September 1975 separation document (DD Form 214); 29 November 2002 correction of separation document (DD Form 215);
26 November 2002 Statement of Service (DA Form 1506); ARPC Form 249-2-E, dated 10 January 2003; APERSCOM letter, dated 14 April 2003; Letter Orders Number T-11-0313, dated 2 December 1974; and Military Pay Voucher
(DA Form 2139) for the period 20 through 31 January 1975.
CONSIDERATION OF EVIDENCE:
1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR1999027855, on
3 August 2000.
2. The applicant’s record shows that on 14 July 1997, he was discharged, UOTHC, under the provisions of paragraph 4-2b, Army Regulation 600-8-24, by reason of unacceptable conduct. The DD Form 214 issued to him on that date shows that he was credited with completing a total of 19 years, 1 month, and
18 days of active military service.
3. As a result of the 3 August 2000 ABCMR review of the applicant’s case, his record was corrected by voiding his 14 July 1997 UOTHC discharge and showing that he was instead released from active duty (REFRAD) and transferred to the Retired Reserve on that same date. His record was also corrected by upgrading his discharge to a GD. His transfer to the Retired Reserve will allow for him to receive non-regular retired pay at age 60 under the provisions of Title 10 of the United States Code, section 14905(b)(2). The new DD Form 214 issued to him as a result of these corrections still showed that he had completed 19 years,
1 month, and 18 days of active military service as of 14 July 1997, the date of his REFRAD.
4. The applicant’s Military Personnel Records Jacket (MPRJ) contains a copy of a separation document (DD Forms 214) that covers the applicant’s active duty service from 28 November 1967 through 21 April 1969. This document confirms that he completed a total of 1 year, 4 months, and 24 days of active military service during this period. The applicant authenticated this document with his signature.
5. A second DD Form 214 on file documents the applicant’s active duty service from 22 April 1969 through 21 April 1972, and it confirms that he completed a total of 3 years, 0 months, 0 days of active military service during this period. It also verifies that as of that date, he had completed a total of 4 years, 4 months, and 24 days of active military service. The applicant also authenticated this document with his signature.
6. The MPRJ also contains a copy of Reserve Letter Orders Number T-11-0313, dated 2 December 1974, which ordered the applicant to active duty for training (ADT) for 208 days from 26 January through 21 August 1975, and for 15 days from 22 August through 5 September 1975. The applicant provides a military pay voucher that indicates he was in a travel status from 20 through 31 January 1975.
7. The DD Form 214 issued to the applicant on 11 September 1975, for the period he was ordered to active duty by Letter Orders Number T-11-0313, indicates that he served on active duty from 26 January 1975 through
11 September 1975. While the document incorrectly indicates that the applicant completed a total of 7 months and 19 days of active military service during the period, a calculation of the service dates covered by the separation document confirms that the total period of active duty service completed during this period was 7 months and 16 days. The applicant authenticated this document with his signature on the date of his separation. There is no indication that he questioned the active duty service credit he received at this time.
8. The applicant’s MPRJ also contains a copy of the final DD Form 214 he was issued upon his separation on 14 July 1997. This document covers the period of active duty service from 7 June 1983 through 14 July 1997, and it confirms that he completed 14 years, 1 month, and 8 days of net active military service during
the period. It also verified that he had completed 5 years and 10 days of prior active service and a total of 19 years, 1 month, and 18 days of active military service.
9. Other than the properly constituted separation documents, outlined in the preceding paragraphs, there are no other documents on file that can be used to verify the applicant’s active duty service through his final separation date on
14 July 1997.
10. The last official Statement of Service (DA Form 1506) completed on the applicant is dated 26 November 2002. This document was completed at the applicant’s request over five years after his final separation from active duty. It shows that he completed a total of 19 years, 11 months, and 25 days of active military service. This included all active duty service and ADT service credit granted the applicant between 18 October 1967 and 14 July 1997, as documented in the enclosed source document, ARPC Form 249-2-E, which confirmed that the applicant was credited with 236 days of active duty service for the RYE on 18 October 1975 and 48 days for the RYE on 18 October 1982.
11. In a 12 December 2002 letter, the ARPERSCOM Retirements and Annuities Supervisor responded to a 10 September 2002 request from the applicant that his retirement data be reviewed. This ARPERSCOM official informed the applicant that this was the first request received by his branch for review of his retirement data. The applicant was further notified that all documents in his record, as well as those he submitted, were reviewed in an effort to correct any errors or omissions to his active Federal service. This review determined that as of 14 July 1997, the applicant had completed a total of 19 years, 11 months, and 25 days of active military service.
12. In connection with the processing of this case, an advisory opinion was obtained from the Commander, Human Resources Command (HRC),
St. Louis, Missouri, formerly known as ARPERSCOM. The HRC commander states that the command requested all of the finance records of the applicant from the Defense Finance and Accounting Service (DFAS). Once all the available documents were received, they were reviewed over a two day period by two senior retirement analysts. This review resulted in a determination that based on the documents provided by DFAS, no change could be effected.
13. The HRC commander further indicates that a very thorough review was conducted in an effort to conclusively approve or deny the applicant’s request for active Federal service retirement. However, if the command were to base a change solely on the documents provided by DFAS, the applicant would lose qualifying years. Therefore, previously accepted retirement point totals not covered by the DFAS documents were accepted as correct. DFAS documents for the periods 17 through 30 June 1973, 20 July through 3 August 1974,
21 June through 5 July 1975, and 3 through 19 June 1976 were all found to have been previously accounted for by HRC.
14. The HRC commander further indicated that several attendance documents for the periods 10 May through 3 June 1972 and 8 through 22 July 1972 were provided in conjunction with a single Leave and Earnings Statement (LES) for each training period. The number of days shown by these documents did not match the number of days of active duty paid by DFAS and the applicant was credited with the time paid by DFAS.
15. The HRC commander further states that it is conceivable that the applicant’s account does not exactly reflect his service points as too many years have transpired to be assured of an accurate and exact accounting. Despite the fact that the RPAS statements issued to the applicant over the years contained instructions specifically advising the recipient to take immediate action if an error was identified, no corrective action appears to have been attempted.
16. The HRC commander also indicates that data found on the official RPAS is based upon data provided by HRC, the soldier, the unit, and DFAS. That data must be judged as correct until valid documents provide proof of an error. DFAS has not been able to provide all the pay vouchers for the periods of active duty claimed by the applicant in his ABCMR application. Specifically the periods from 22 April 1972 through 25 January 1975 and 12 September 1975 through 6 June 1983. Without all of these vouchers for these periods, it is not possible to definitively determine if the applicant’s retirement point statement is in error.
17. The HRC commander finally states that based solely on the data available, the applicant does not have the required twenty years of active duty to qualify for retirement under the provisions of Title 10 of the United States Code, section 3911.
18. On 8 January 2004, the applicant’s counsel responded to the HRC advisory opinion on the applicant’s behalf. Counsel claims that the HRC opinion makes several factual findings. First, that the accounting provided by DFAS is incorrect. Second, that the number of days of active duty service shown on training documents does not match the number of days of active duty service upon which the applicant was paid by DFAS. Third, that based on these determinations, it is conceivable that the Army’s account of the applicant’s active duty service is inaccurate, as an accurate accounting is no longer possible due to the intervening years. Fourth, DFAS was unable to provide pay vouchers for extensive periods of active duty service performed by the applicant and documented in the RPAS. Finally, that without these documents, it is impossible to determine definitively if the applicant’s RPAS statement provided by the Army is correct.
19. Further, counsel states that the HRC advisory opinion fails to address factual claims raised by the applicant that demonstrate that he had over 20 years of active duty service at the date of his separation from active duty. First, it failed to address the additional days of active service for the “RYE 811018-821017”. In addition, it did not address the improper interpretation of, and changes to the applicant’s DD Form 214, dated 11 September 1975, which includes six additional days of active duty service credit for retirement.
20. Counsel further claims that all active duty totals from RYE 671018 to
971017 are in agreement between the RPAS and the HRC calculations, except for the RYE 811918-821917 and the 11 September 1975 DD Form 214 totals. The proper way to resolve these issues is to compare the 12 December 2002 ARPERSCOM Transitions and Separations Board memorandum to the chronological statement of retirement points, dated 10 January 2003. Counsel claims that in spite of the applicant’s many requests to do so, this comparison had never been made by ARPERSCOM.
21. Counsel also claims that the first unmarked enclosure to the bottom section for the RYE on 17 October 2002, of the 12 December 2002 memorandum shows 43 days of active duty for the RYE on 17 October 1982, and indicates a total active service 19 years, 11 months, and 25 days. This is in error as the most recent RPAS statement, dated 12 December 2003 and the RPAS statement, date 10 January 2003, both show 48 days of active duty for the RYE on
17 October 1982. These additional active duty days, when added to the applicant’s account, bring the total active Federal service to 20 years, 0 months, and 0 days.
22. Counsel also addresses, what he claims, is the improper interpretation of the applicant’s 11 September 1975 DD Form 214. He claims that based on a false assumption and erroneous calculation, HRC attempted to remove three days of active duty service credit from this document. However, the amendment incorrectly shows the DD Form 214 was dated 11 September 1979. Therefore, the amendment is invalid. Counsel concludes that with these three days added back, along with the active duty service calculations, the applicant’s creditable active Federal service should be 20 years, 0 months, and 9 days. Counsel states that it is important to understand that all other active duty periods are not in question.
23. Counsel also alleges that there is strong reason to believe that the HRC, St. Louis retirement official who prepared the advisory opinion harbors personal and professional bias toward the applicant. Counsel provides information presented by the applicant regarding the personal relationship between the applicant and the retirement official in question, and states that this evidence of bias should be considered when the merits of this case are weighed.
24. Army Regulation 15-185 prescribes the policy and procedures for the operation of the Army Board for Correction of Military Records (ABCMR). It states that the ABCMR is not an investigative body and will decide cases by the evidence of record. It further stipulates that the ABCMR begins its consideration with a presumption of administrative regularity, and that the applicant has the burden of proving an error or injustice by a preponderance of the evidence.
DISCUSSION AND CONCLUSIONS:
1. The applicant and his counsel claim that the applicant should receive an additional six days of active duty service credit for the RYE on 18 October 1975, based on travel he completed in January 1975, as evidenced by the military pay voucher he provides; and that he should receive an additional five days of active duty service credit for the RYE on 18 October 1982 because of the inconsistencies of the ARPERSCOM computations.
2. The applicant’s MPRJ contains a copy of Reserve Letter Orders Number
T-11-0313, dated 2 December 1974, which ordered him to active duty for training (ADT) for 208 days from 26 January through 21 August 1975, and 15 days from 22 August through 5 September 1975. In addition, he provides a military pay voucher that indicates he was paid travel pay for the period 20 through
31 January 1975, which would account for an additional six days of active duty service not covered by the separation document and letter orders. The total active duty days authorized by these documents is 229 days.
3. The DD Form 214 issued to the applicant on 11 September 1975, confirms that he served on active duty from 26 January through 11 September 1975, or
229 days. This total accounts for the total time authorized by the Letter Orders Number T-11-0313 and the military pay voucher he provided.
4. Further, the final ARPC Form 249-2-E issued to the applicant shows that
he was credited with 236 days of active duty service during the RYE on
18 October 1975, seven days more than the total authorized by the documents provided. The applicant and his counsel were given an opportunity to provide any additional training records and/or other documentary evidence that could verify his entitlement to active duty service beyond the 236 days for which he was credited for this period; however, no such evidence was submitted. As a result, there is an insufficient evidentiary basis to grant the additional active duty service credit requested for the period in question.
5. The applicant authenticated the 11 September 1975 DD Form 214 he received with his signature, thereby, verifying that the information contained in this separation document, to include the period of active duty service, was correct as of the date it was issued. There is no indication in the record that the applicant ever questioned this period of active duty service at the time he was separated in 1975, or in the over 22 years that passed prior to his final separation in 1997.
6. The applicant and his counsel also contend that the applicant is also entitled to an additional five days of active duty service credit for the RYE on 18 October 1982 because of inconsistencies in the service credit documents provided by ARPERSCOM.
7. However, a comprehensive review of the applicant’s account conducted under the oversight of the HRC. St. Louis commander failed to confirm the applicant’s entitlement to an adjustment to his total active duty service credit based on the active duty service he performed during the RYE on 18 October 1982. The applicant and his counsel were again provided the opportunity to provide training records or other documentary evidence to show that he was entitled to additional active duty service credit for this period; however, no such evidence was submitted.
8. Counsel’s assertion that the retirement official who prepared the
HRC advisory opinion harbored bias against the applicant was also carefully considered. However, there was no evidence found that would support a conclusion that this personal relationship impacted the results of the review of the applicant’s retirement account. This review was conducted by two retirement officials under the supervision of the HRC, St. Louis commander, who finally approved its content and there is no reason to question the validity of its content based on this assertion of prejudice.
9. The evidence of record contains active duty separation documents that confirm the applicant completed a total of 19 years, 1 month, and 18 days of active military service as of his final separation date of 14 July 1997. In spite of the applicant’s and his counsel’s assertions to the contrary, the independent evidence provided does not provide a basis to contest the validity of the active duty service credit granted in these properly constituted separation documents.
10. The last official statement of service issued by HRC, St. Louis retirement officials on file is dated 22 November 2002. This document indicates that the applicant completed a total of 19 years, 11 months, and 25 days of active military service. The applicant and his counsel contend that the service credited by this document should be accepted, with the exception of the 11 days of active duty service they now claim should be added to the applicant’s active duty service total.
11. At the request of the ABCMR staff, the HRC, St. Louis commander oversaw a review of the applicant’s retirement account to determine if the applicant was being credited with all active duty service that he had completed. The information and documents considered during this review included all the documents provided by the applicant, the retired account data on file at HRC,
St. Louis, and all available master pay account documents provided by the DFAS. This review resulted in a determination that the applicant had not completed the twenty years of active duty service necessary to qualify for retirement under the provisions of Title 10 of the United States Code, section 3911. In fact, the HRC commander confirms that the available records and documents on file fail to even support the current active duty service the applicant was credited with on his last RPAS statement and last statement of service.
12. It is clear there are inconsistencies in the applicant’s record of active duty service. Only 19 years, 1 month, and 18 days of active military service can be confirmed based on the uncontested documentary evidence of record, which includes DD Forms 214 issued to the applicant upon his separations from active duty on 21 April 1969, 21 April 1972, 11 September 1975, and 14 July 1997.
13. Although the review of the applicant’s account failed to verify the active duty service credit he was granted by the last DA Form 1506 issued by HRC on
26 November 2002, there must be a presumption of regularity made in regard to the active duty service credit granted the applicant by this official statement of service. However, there has been insufficient evidence provided with this application that would allow further active duty credit being granted at this time.
14. Finally, it is unreasonable to believe that an accurate adjustment can be made to the active duty service credit the applicant received during periods of active duty service he performed in 1975 (over 25 years ago) and 1982
(over 20 years ago) based on the limited documentary evidence and argument he now presents. In spite of the instructions to take immediate action if an error was identified contained in each RPAS statement issued to the applicant over the years, there is no indication that he ever took action to correct the service credit issues he now raises at anytime in the 15 years that passed between the periods in question, the last of which was in 1982, and the date of his final active duty separation in 1997.
15. By regulation, the ABCMR begins its consideration of each case with a presumption of administrative regularity, and the applicant has the burden of proving an error or injustice by a preponderance of the evidence. In this case, the independent evidence provided by the applicant and his counsel fail to satisfy the burden of proof necessary to establish an error or injustice exists in the active duty service credit granted for the two periods of service in question.
BOARD VOTE:
________ ________ ________ GRANT RELIEF
________ ________ ________ GRANT FORMAL HEARING
_RJW___ _LE_____ _MVT___ DENY APPLICATION
| CASE ID | AR2003091598 |
| SUFFIX | |
| RECON | |
| DATE BOARDED | 2004/08/26 |
| TYPE OF DISCHARGE | GD |
| DATE OF DISCHARGE | 1997/07/14 |
| DISCHARGE AUTHORITY | AR 600-8-24 |
| DISCHARGE REASON | Conduct Unbecoming |
| BOARD DECISION | DENY |
| REVIEW AUTHORITY | |
| ISSUES 1. 338 | 136.0000 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
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