RECORD OF PROCEEDINGS


	IN THE CASE OF:      
	     

	BOARD DATE:            7 June 2005       
	DOCKET NUMBER:   AR20050001028


	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

Mrs. Nancy L. Amos

Analyst


The following members, a quorum, were present:


Mr. William D. Powers

Chairperson

Ms. Karen Y. Fletcher

Member

Mr. Kenneth L. Wright

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 that his time in service for pay purposes  be recalculated to include the time he spent as a cadet at the U. S. Military Academy (USMA).

2.  The applicant states that he was given credit only for the period 29 June  1966 until 3 July 1967 and not given full credit for his service from 3 July 1967    to 8 June 1971.  He was serving in the Reserves while he was at the Academy.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 28 June 1969; his DA Form 71 (Oath of Office – Military Personnel); a DAPC-PS Form 143 (Computation of Officer's Service); a DA Form 4187 (Personnel Action) dated   13 September 1999; an enlistment contract dated 29 June 1966; his DA Form  20 (Enlisted Qualification Record); his DA Form 66 (Officer Qualification Record); a DA Form 7301-R (Officer Service Computation for Retirement) dated              10 October 2003; cadet discharge orders dated 15 November 1971; and a copy of a "precedent" Army Board for Correction of Military Records (ABCMR) case.

CONSIDERATION OF EVIDENCE: 

1.  The applicant enlisted in the Regular Army on 29 June 1966 for 3 years.  He apparently was assigned to the U. S. Military Academy Preparatory School (USMAPS) at some point.  His DA Form 20 and DA Form 66 show he was appointed to the USMA as a cadet on 3 July 1967.  

2.  The applicant was released from active duty on 28 June 1969 upon the expiration of his term of service and transferred to the U. S. Army Reserve Control Group (Reinforcement) to complete his statutory service obligation.  He was given a DD Form 214 for the period ending 28 June 1969, item 18 of which shows he had 3 years net active service that period.

3.  The applicant graduated from the U. S. Military Academy and was commissioned in the Regular Army on 9 June 1971.  

4.  Headquarters, First U. S. Army Special Orders Number 319 dated                15 November 1971 relieved the applicant and about 40 others from the U. S. Army Reserve Control Group (Reinforcement) effective 8 June 1971.  

5.  The applicant is currently serving as the Commanding General, III Corps and Fort Hood in the rank of Lieutenant General.

6.  In the processing of this case, an advisory opinion was obtained from the Accessions, Retirements, and Separations Branch, U. S. Army Human Resources Command.  That office noted that, according to Title 10, U. S. Code, section 971 and the DODFMR, officers may not count service performed while serving as a cadet or midshipman.

7.  A copy of the advisory opinion was provided to the applicant for comment or rebuttal.  He stated that the advisory opinion did not properly address his situation.  Separate and apart from his cadet service, he had an obligation to the U. S. Army.  During that period, cadets who entered the USMA from a civilian status could resign before the first day of their junior year without an obligation.  Several of his USMAPS classmates who were in his situation chose to resign from the USMA and continue their college studies elsewhere without any obligation to USMA or the U. S. Army.  Because they completed their enlistment tours of 3 years, they received the benefits of the GI Bill for those 3 years.  

8.  The applicant also stated that some of his USMAPS classmates who received appointments outside the Department of Defense (Coast Guard and Merchant Marine Academies) were given discharges (DD Forms 214) which in effect completed their obligation to the U. S. Army.  He understands this route to complete an enlistment service obligation early was curtailed and that disparate treatment is no longer occurring.  However, his service obligation was not terminated upon his enrollment at the USMA and he should be credited with the full 3 years of service.

9.  The applicant further stated that this argument has once before been favorably considered by the ABCMR.  In that case, no different from the applicant's own, the member was credited with the full 3 years for his first enlistment.  

10.  In support of his argument, the applicant provided an ABCMR application dated 22 September 1996 from Lieutenant Colonel (LTC) M___.  LTC M___ requested that his 3 years of service shown on the DD Form 214 he received, while a USMA cadet, when his enlisted term of service expired be calculated to compute his time in service.  He had retired on 1 October 1991 and his DD Form 214 for the period ending 30 September 1991 showed he had completed only     1 year and 5 days of prior active service.  

11.  On the same date (22 September 1996), LTC M___ wrote a letter to the      U. S. Army Reserve Personnel Center (ARPERCEN) requesting the same correction and recomputation of his retired pay.  On 18 September 1996, he had written a letter to the National Personnel Records Center (NPRC) requesting the same correction and recomputation of his retired pay.
12.  On 18 February 1997, the NPRC or ARPERCEN (it cannot be determined which agency) issued LTC M___ a DD Form 215 (Correction to DD Form 214) amending his DD Form 214 for the period ending 30 September 1991 to show he had 3 years of prior active service.  

13.  On 30 April 1997, LTC M___ informed the Defense Finance and Accounting Service (DFAS) that his DD Form 214 had been corrected and requested his retired pay be recomputed.  On 19 March 1998, DFAS recomputed his retired pay apparently based upon the corrected DD Form 214.

14.  On 5 August 1998, the ABCMR informed LTC M___ that a DD Form 215 had been issued to show his prior active service as 3 years.  The ABCMR also informed him that Title 10, U. S. Code, section 971 states that in computing length of service for any purpose, service as a cadet or midshipman may not be credited to a commissioned officer of the Army or other service.  Accordingly, his application was returned to him without action.

15.  The Department of Defense Financial Management Regulation (DODFMR), volume 7A, chapter 1, paragraph 0101 prescribes service creditable for pay purposes.  It states that service as a cadet at a military service academy is always creditable service for an enlisted member.  Table 1-1 must be used to determine whether such service is creditable for commissioned and warrant officers.  Table 1-1 states that when a member currently serving as an officer has had service as a cadet in any of the military academies to which he was appointed after 25 June 1956 and he held no concurrent enlisted and/or Reserve status or had an enlistment contract or period of obligated service that was not terminated, then the period involved was not creditable.

16.  Currently and at the time, Title 10, U. S. Code, section 971(a) states that the period of service under an enlistment or period of obligated service while also performing service as a cadet may not be counted in computing, for any purpose, the length of service of an officer of an armed force.  Currently and at the time, section 971(b) states that in computing length of service for any purpose, service as a cadet or midshipman may not be credited to any commissioned officer of the Army.

17.  At the time, Title 10, U. S. Code, section 651(a) stated that each male person who became a member of an armed force before his 26th birthday would serve in the armed forces for a total of six years unless he was sooner discharged because of personal hardship under regulations prescribed by the Secretary of Defense, or, if he was a member of the Coast Guard while it was not operating as a service in the Navy, by the Secretary of the Treasury.  (The Coast Guard was transferred from the Department of the Treasury to the Department of Transportation by Public Law 89-670 enacted on 15 October 1966.) 

18.  Currently, Title 10, U. S. Code, section 651(a) states that each person who becomes a member of an armed force shall serve in the armed forces for a total initial period of not less than six years nor more than eight years as provided in regulations prescribed by the Secretary of Defense for the armed forces under his jurisdiction and by the Secretary of Homeland Security for the Coast Guard when it is not operating as a service in the Navy, unless such person is sooner discharged under such regulations because of personal hardship.  

19.  Army Regulation 635-5 prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It states that the DD Form 214 is a synopsis of the Soldier’s most recent period of continuous active duty.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's argument that he was still under a military service obligation while he was at the USMA is understood.  However, the law is clear and addresses that argument -- the period of service under an enlistment or period of obligated service while also performing service as a cadet may not be counted in computing, for any purpose, the length of service of an officer of an armed force. 

2.  The applicant's argument, in his rebuttal to the advisory opinion, that some of his USMAPS classmates who received appointments outside the Department of Defense were given discharges (DD Forms 214) which in effect completed their obligation to the U. S. Army, is noted.

3.  It appears the applicant has a common misconception of what the DD Form 214 is.  It is a record of discharge or transfer.  His USMAPS classmates may have received a DD Form 214 when they were transferred to the Coast Guard or Merchant Marine academies; however, it is unlikely that they were discharged.  They, most likely, would have been transferred to the U. S. Army Reserve Control Group (Reinforcement) just as the applicant was and their DD Forms 214, most likely, would only have been a record of their most recent period of active duty in the Army.  By law, once they became a member of the Army their six year obligation was not to the Army but to the Armed Forces in general.  

4.  The applicant's citing of LTC M___'s September 1996 ABCMR application as a "precedent" for granting him the same relief is noted.  However, the ABCMR did not grant relief to LTC M___.  In fact, the ABCMR informed LTC M___ of the same fact that it is now telling the applicant -- Title 10, U. S. Code, section 971 states that in computing length of service for any purpose, service as a cadet or midshipman may not be credited to a commissioned officer of the Army or other service.  The ABCMR then returned LTC M___'s application to him without action.

5.  It appears that DFAS erroneously took LTC M___'s corrected DD Form 214 at face value without researching to discover that those 3 years of service were served while a cadet at the USMA.  It is not reasonable for the applicant to expect that because an error was made in LTC M___'s case that a similar error should be made in his case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__wdp___  __kyf___  __klw___  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.




		__William D. Powers___
		        CHAIRPERSON





INDEX

CASE ID
AR20050001028
SUFFIX

RECON

DATE BOARDED
20050607
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Chun
ISSUES         1.
128.00
2.

3.

4.

5.

6.