RECORD OF PROCEEDINGS
IN THE CASE OF: .
BOARD DATE: 21 December 2004
DOCKET NUMBER: AR2004103494
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. W. W. Osborn, Jr. | |Analyst |
The following members, a quorum, were present:
| |Mr. Fred N. Eichorn | |Chairperson |
| |Mr. Paul M. Smith | |Member |
| |Ms. Seema E. Salter | |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. The applicant requests reconsideration of his request to change the
period of service shown on his DD Form 214 (Certificate of Release or
Discharge from Active Duty) so that he will have two years of active duty
service and qualify for Department of Veterans Affairs (VA) medical
benefits.
2. The applicant states that, subsequent to the Board's decision he was
informed that the authority cited was incorrect and that his case had been
denied under paragraph 010102A6 of Department of Defense Financial
Management Regulation (DODFMR), which applies to pay purposes. Since his
request did not involve pay he believes that the regulatory requirement is
not applicable. Crediting him with 1 month and 1 day prior active spent
time would make his total 1 year, 11 months and 14 days. He believes that
the Board can, "waive the 16 days needed for me to have a total of two
years active duty service." He also argues that subparagraph 010102A6 is
unconstitutional because it excludes a certain class of individuals without
any explanation. This violates the constitutional guarantee of equal
protection clause as set forth in the Fourteenth Amendment.
3. The applicant provides an extract showing paragraph 010102A6 of the
DODFMR.
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
AR2003091252, on 21 October 2003.
2. The DODFMR paragraph 010101 sets forth the policy and provisions for
crediting service for basic pay purposes. Paragraph 010102 lists periods
that are excluded from such credit. Subparagraph 010102A6 states, "For
commissioned officers, any period of service performed after October 12,
1964 and prior to August 1,1979, in the Reserve Officers’ Training Corps,
even if such member held concurrent Reserve status."
DISCUSSION AND CONCLUSIONS:
1. Both Paragraphs 010101 and 010102A6 apply to the applicant's case.
Paragraph 010101 defines periods that count as service in calculating
longevity for basic pay. Paragraph 010102A6 lists specifically excluded
periods. Periods not creditable for basic pay purposes are not creditable
for any other purpose.
2. The DODFMR implements various legislative requirements. There is no
need to include justifications to satisfy possible constitutional
objections. Such issues should be raised about the underlying legislation
in a court of competent jurisdiction.
3. As noted in the original case the applicant served on active duty for 1
year, 10 months and 13 days and desires credit for 2 full years so that he
can qualify for VA benefits.
4. The applicant has provided no compelling reason to grant the requested
relief. He is not entitled to such relief as a matter of law or regulation.
Qualification for VA benefits is not normally accepted as a basis for this
Board to recommend relief as a matter of equity. Award or denial of VA
benefits is not within the purview of this Board. The VA, operating under
its own policies and regulations, may makes its own determinations.
5. 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
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
__FNE___ __PMS _ __SES __ 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 to amend the decision of
the ABCMR set forth in Docket Number AR2003091252, dated 21 October 2003.
Fred N. Eichorn___________
CHAIRPERSON
INDEX
|CASE ID |AR2001103494 |
|SUFFIX | |
|RECON |20041221 |
|DATE BOARDED | |
|TYPE OF DISCHARGE | |
|DATE OF DISCHARGE | |
|DISCHARGE AUTHORITY | |
|DISCHARGE REASON | |
|BOARD DECISION |DENY |
|REVIEW AUTHORITY | |
|ISSUES 1. |129.01 |
|2. | |
|3. | |
|4. | |
|5. | |
|6. | |
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