RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         03 FEBRUARY 2005
      DOCKET NUMBER:  AR20040000773


      I certify that hereinafter is recorded the true and complete record
of the proceedings 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:

|     |Mr. Melvin Meyer                  |     |Chairperson          |
|     |Ms. Linda Barker                  |     |Member               |
|     |Mr. Larry Olson                   |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  In effect, the applicant requests that his records show that the date
of his retirement from the Army be a date in 2005.

2.  The applicant states that his 2005 retirement date was recently
changed, and does not reflect the retirement date under contract.  He
transferred from special forces into the Army Dental Corps, accepting an
appointment on 22 February 1993.  He was ordered to active duty with a
reporting date of 8 June 1993.  His appointment memorandum shows that he
was credited with 8 years, 11 months, and 9 days of service in an active
status because of his prior service.  He was informed and assured by
personnel assisting his transformation into the Dental Corps that his
retirement year would be 2005.  Upon receiving a permanent change of
station, his prior service time was recalculated and his prior service time
verified.  A review of his ORB (Officer Record Brief) confirms that his
projected/mandatory retirement date has always been 30 November 2005.

      a.  In preparation for retirement, he requested guidance in March 2004
and was informed that his prior service credit would not be honored and his
retirement date would be in 2013.  He requested recalculation from the
Officer Retirement Division in Alexandria, Virginia, and was informed that
his new retirement date would be in 2011.

      b.  The Department of Defense Financial Management Regulation (DODFMR)
seems to support the above-mentioned credited service.  Also, he was
informed that this service was never considered “constructive credit.”  His
retirement date of 30 November 2005 has been calculated based on all of his
records.

3.  The applicant provides a copy of his appointment letter and active duty
order. He provides a copy of two ORBs, and a copy of his reply to an
official at the Human Resources Command Accessions, Retirements, and
Separations Branch.

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed a Reserve commissioned officer on 5 October
1979.  He was granted federal recognition as a field artillery second
lieutenant in the Mississippi Army National Guard on 13 October 1979.

2.  The applicant completed the Field Artillery Officer Basic Course in
1980, and was on active duty from November 1984 to April 1985, completing
the special operations detachment officer qualification course.  He was
promoted to captain on 12 September 1985.  The applicant was assigned to
the 2nd Battalion,         20th Special Forces Group, a National Guard unit
in Columbus, Mississippi.  He was on active duty during Operation Desert
Storm.  On 27 August 1992 he was separated from the Army National Guard and
transferred to the Army Control Group (Reinforcement) in St. Louis.

3.  On 22 February 1993 the applicant was appointed a Reserve commissioned
officer in the grade of captain in the Dental Corps, under the provisions
of Army Regulation 135-101.  His appointment letter shows that he was
credited with       8 years, 11 months, and 9 days of service in an active
status, with the notation that service was not valid for pay entry basic
date and was not the result of prior military service.

4.  He was ordered to active duty with a reporting date to Fort Campbell,
Kentucky of 8 June 1993.  His active duty orders show entry grade credit of
       8 years, 11 months, and 9 days, awarded as of entry on active duty.


5.  The applicant has remained on continuous active duty.  His records show
his date of rank as a captain of 13 March 1988.  He was promoted to major
on          1 October 1994 and to lieutenant colonel on 1 October 2001.  On
20 December 2001 he was appointed a Regular Army officer in the Dental
Corps.

6.  The applicant submits two ORBs with his request, one dated 9 July 1996,
the other, 20 November 2000.  Both show a BASD (basic active service date)
of       9 November 1985, a basic date of appointment as 13 October 1979,
and a date of projected/mandatory retirement of 30 November 2005.

7.  On 17 August 2004, in response to a request from an official at the
Human Resources Command, he forwarded information concerning the dates of
his dental school, and stated he had been informed that the 8 years, 11
months, and 9 days that had been calculated from his prior service was
considered time for retirement, not a reflection of dental school credit.

8.  In the processing of this case, an advisory opinion was obtained from
the Human Resources Command Accessions, Retirement and Separations Branch.
An official of that branch stated that the 8 years, 11 months, and 9 days
of service that the applicant was claiming as service toward his
retirement, is used to determine his date of rank upon entry on active
duty.  That official included a DA Form 7301-R (Officer Service Computation
for Retirement) with the advisory opinion.  That form shows his total
service as a member of the Reserve components (National Guard and Army
Reserve Control Group), to include         1 year, 10 months, and 25 days
of active duty, and shows his current active duty service from 5 June 1993
to 30 September 2004.  It indicates that as of that date he had 13 years, 2
months, and 21 days of active service, with a projected retirement date
based on 20 years of active federal service of 31 July 2011.

9.  In his rebuttal, the applicant stated that he did have military service
prior to his appointment as a Dental Corps officer, which was not
constructive credit.  He took exception to the statement that the service
was used to determine his date of rank, stating that he was a promotable
captain for over 13 years when appointed in the Dental Corps, and his
promotion was delayed because he was informed that he could not be
appointed as a major.  He stated that the statement regarding date of rank
determination had no impact on his case because he was a promotable captain
and actually lost promotion time.  He stated that the DODFMR states that no
constructive credit will be granted after 14 September 1981.  He was
appointed as a Dental Corps officer in 1993 and his first assignment
reflects no constructive credit.

      a.  He stated that he was told about constructive service credit and
then asked about receiving the credit.  He was informed that he could not
qualify because he was in the National Guard while in dental school and no
time was awarded after 1981.  He stated that his records has always shown
his retirement date of 2005, and that he was so informed prior to signing
his Dental Corps contract.

      b.  He stated that the official at the Human Resources Command was not
aware of the regulations concerning her functions, that she incorrectly
deleted points in excess of 60 on the DA Form 7301-R, and also failed to
request prior service documents, and show the time he earned after 1985.


      c.  He stated that he was on active duty during Desert Storm, and that
his LES (leave and earning statement) does not include a four year credit
for any time.  He stated that he was informed that his LESs of his prior
service were used to calculate his retirement date of November 2005.

10.  A copy of the applicant’s most current ORB, dated 17 January 2005,
shows his BASD as 10 July 1991, his basic date of appointment as 13 October
1979, and his date of projected/mandatory retirement as 12 January 2016.

11.  Army Regulation 135-101 prescribes the policy, procedures, and
eligibility criteria for appointment in the Reserve components of the Army,
with or without concurrent active duty, in the six branches of the Army
Medical Department (AMEDD).  Paragraph 1-3 states in pertinent part that
commissioned officers of any Reserve Component of the Army who have served
satisfactorily in the specialty for which they are applying may be
appointed and/or called to active duty in the grade currently held if
serving in the specialty for which applying or in the highest grade for
which they can fully qualify by education and experience, gained after
becoming professionally qualified.  This is indicated in Chapter 3.

12.  Chapter 3 provides for grade and date of rank upon appointment.
Paragraph 3-1 states that grade and date of rank upon original appointment
and assignment to an AMEDD branch will be determined by the number of years
of entry grade credit awarded.  Entry grade credit granted will be the sum
of constructive service credit and credit for prior active commissioned
service.  Entry grade credit upon appointment or assignment will be
recorded on DA Form 5074-R for medical and dental officers.  A period of
time will be counted only once when computing entry grade credit.
Constructive service credit will be granted for periods of professional
training and experience accrued after receipt of the basic qualifying
degree (See tables 3-1, 3-3, 3-4, and 3-5).  Credit for prior active
commissioned service will be computed as shown in table 3-2.

13.  Table 3-1 provides for constructive service credit and states that
periods of time spent as a commissioned officer either in an active status
or on active duty will not be counted.  That table shows that 4 years of
constructive service credit is awarded for a basic qualifying degree, i.e.,
M.D., one year for successful completion of internship, and one year for
each year for graduate professional education (GPE).

14.  Table 3-2 provides for computation of prior active commissioned
service credit and states that one-half year of credit is awarded for each
year of active commissioned service, not on extended active duty, or
commissioned service in an active status, in other than the specialty in
which being appointed.

15.  10 USC 101 provides the following definitions -

    • The term ''active duty'' means full-time duty in the active military
      service of the United States.  Such term includes full-time training
      duty, annual training duty, and attendance, while in the active
      military service, at a school designated as a service school by law or
      by the Secretary of the military department concerned.  Such term does
      not include full-time National Guard duty.
    • The term ''active service'' means service on active duty or full-time
      National Guard duty.

16.  10 USC 3911 provides for the retirement of commissioned officers and
states that the Secretary of the Army may, upon the officer's request,
retire a regular or reserve commissioned officer of the Army who has at
least 20 years of service computed under section 3926 of this title, at
least 10 years of which have been active service as a commissioned officer.
 Section 3926 states in pertinent part, for the purpose of determining
whether an officer of the Army may be retired under section 3911, his years
of service are computed by adding all active service performed as a member
of the Army or the Air Force.

17.  Army Regulation 600-8-24 provides for the nondisability retirement of
commissioned officers who have 20 years or more of active federal service
(AFS), and states in pertinent part that voluntary retirement eligibility
is determined by AFS (10 USC 3926).  Years of service, in this case, are
computed by adding all service performed as a member of the Army or the Air
Force.

18.  Active Federal commissioned service is defined as full-time duty in
the active military service of the United States.  It includes full-time
training duty, annual training duty, and attendance, while in the active
military service, at a school designated as a service school by law or by
the secretary of the military department concerned.

19.  Army Regulation 135-180 implements statutory authorities governing the
granting of retirement pay to soldiers and former Reserve component
soldiers and states in pertinent part that active duty means full-time duty
in the active military service of the United States.

20.  Department of the Army Pamphlet 600-8 provides the following
definitions –

      a.  Pay Entry Basic Date (PEBD).  The actual or constructive date
creditable service for pay purposes begins.


      b. Basic Active Service Date (BASD).  The actual or constructive date
from which a member accrues active Federal service for retirement.


It provides for the computation of military service and states that when
military status has been interrupted by separation, determine the BASD by
subtracting the total prior creditable service from the date the current
period of service began.

21.  Army Regulation 140-185, Army Reserve, Training and Retirement Point
Credits, defines active status as the status of an Army National Guard of
the United States or Army Reserve commissioned officer, who is not in the
inactive Army National Guard, in the Standby Reserve (Inactive List), or in
the Retired Reserve.  Active service is defined as service on active duty
or full time National Guard duty.

DISCUSSION AND CONCLUSIONS:

1.  The computations used that resulted in the applicant being credited
with          8 years, 11 months, and 9 days of service in an active status
when he was appointed as a captain in the Dental Corps in 1993 are
unavailable to the Board, that is, the DA Form 5074-R used to record entry
grade credit is not contained in his records.  Nonetheless, it is presumed
that the period credited is accurate.  This, the applicant does not
dispute.

2.  The applicant served on active duty while a member of the Mississippi
Army National Guard, attending the Field Artillery Officer Basic Course,
and the above-mentioned special forces course, the periods of which are
evident in his record.  He was on active duty during Operation Desert
Storm; however, the information concerning his active duty service is not
available.  Nevertheless, his total active service while a member of the
Army National Guard, 1 year, 10 months, and      25 days, is reflected in
the computations completed by an official at the Human Resources Command.
The applicant does not contest this information, and absent evidence to the
contrary, is presumed to be correct.

3.  The applicant was credited with the 8 plus years in an active status as
indicated above.  Active status does not equate to active duty or active
service, as defined by law and regulation.

4.  The 8 plus years given to him upon his appointment in 1993 enabled him
to be appointed a captain in the Dental Corps with a date of rank in 1988.
A little over a year later he was promoted to major, a clear indication
that the years of service given him when appointed was used to determine
his date of rank upon his entry on active duty.  His contention that the
rank determination had no impact on his case because he was a promotable
captain and actually lost promotion time is misleading.  When he accepted
his appointment as a Dental Corps officer, he vacated his previous
appointment, receiving credit for his service in an active status as
indicated above, aligning him with his contemporaries.  He lost his time in
grade as a captain in the Army National Guard because he accepted a new
appointment.

5.  The applicant’s current period of active duty began on 5 June 1993.  He
had   1 year, 10 months, and 25 days of prior active service.  Working
backwards, subtracting that period of active service from the 5 June 1993
date, results in a date of 10 July 1991, the date shown on his ORB as his
BASD.  He accrues active Federal service for retirement from that date.
Consequently, he would have 20 years of active Federal service for
retirement in July 2011, as indicated in the computations completed by the
official from Human Resources Command.

6.  It is unfortunate that the applicant feels that he was misinformed or
misled concerning the entry grade credit awarded when he was appointed in
1993.
The law is explicit, however.  In order to retire as he requests, he must
have      20 years of active service.  The applicant does not have that
active service, and will not attain 20 years of active service for another
6 plus years on active duty.

7.  Consequently, the applicant’s request to correct his record to show a
retirement date in 2005 is not granted.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___MM__  ___LB___  ___LO __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.





                                  _____  Melvin Meyer______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040000773                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050203                                |
|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.       |136.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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