RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        13 December 2005
      DOCKET NUMBER:  AR20050002468


      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             |
|     |Ms. Joyce A. Wright               |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Shirley L. Powell             |     |Chairperson          |
|     |Mr. Melvin H. Meyer               |     |Member               |
|     |Mr. Allen L. Raub                 |     |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 he receive credit for his time spent for
pre-commissioning training as an obligated Army Reservist until his
commissioning date.

2.  The applicant states that his initial enlistment in the US Army Reserve
(USAR) Control Group, during which he was subject to call to active duty
(AD), should count toward total service, which represented 4 years, during
the period August 1972 to May 1976. He also states that this error was
discovered when he applied for reconsideration of his disability status by
the Veterans Administration (VA).

3.  The applicant provides a copy of his enlistment contract, a copy of his
service computation, a copy of his DA Form 71 (Oath of Office-Military
Personnel), a copy of his appointment memorandum, a copy of two DD Forms
214 (Certificate of Release or Discharge from Active Duty), and a copy of
his separation orders.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 1 October 1997, the date of his placement on the Retired List.
The application submitted in this case is dated 10 February 2005.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  On 15 April 1972, the applicant was informed by the Director, US Army
Reserve Officers' Training Corp (ROTC), that he was selected for an ROTC
Scholarship for a period of 4 years, with his education commencing for the
school year 1972-1973.

4.  The applicant's records show he enlisted as a cadet, on 30 August 1972,
in the USAR Control Group (ROTC), for a period of 6 years.  He was released
from the ROTC Cadet Program on 14 May 1976.


5.  The applicant’s military records show he was appointed a Reserve
commissioned officer in the rank of second lieutenant (2LT/O-1) on 15 May
1976, with prior enlisted service.  He was ordered to active duty (AD) on
19 May 1976, for a period of 4 years.

6.  The applicant was appointed in the Regular Army (RA) on 29 June 1976.
He was promoted to captain (CPT/O-3) with an effective date and date of
rank (DOR) of 1 August 1980.  He continued to serve until he was released
from AD on 31 May 1981.  He was transferred to the USAR Control Group
(Reinforcement).

7.  The applicant was appointed as a Reserve commissioned officer in the
rank of CPT/O-3 effective 1 June 1981.  He was ordered to AD on 2 October
1982.  He was promoted to major (MAJ/O-4) with an effective date and DOR of
1 October 1987.  He continued to serve until he was released from AD
effective 30 September 1997 and was placed on the Retired List effective
1 October 1997, in the rank of major.

8.  The applicant's Summary of Retirement Points shows he completed
21 years of qualifying service for retirement purposes.

9.  The applicant provides a copy of his service computation which shows
that he had completed 20 years and 12 days of active Federal service (AFS)
and had completed 21 years, 4 months, and 16 days of total service for
basic pay purposes.

10.  In the processing of this case, a staff advisory opinion was provided
by the Human Resources Assistant, 81st Regional Support Team (RST),
Personnel Actions and Services Directorate, U.S. Army Human Resources
Command (AHRC)-St. Louis.  AHRC stated that the applicant was requesting
credit for time spent for pre-commissioning training as an obligated Army
Reservist until commissioning.  He was asking for credit for the period of
service from August 1972 to May 1976.  He was not authorized retirement
points or service for this period of time because this time was not
creditable.

11.  AHRC stated that according to Army Regulation 140-185, when
establishing the anniversary year (AY) for newly commissioned officers, the
AY would be established based on their prior enlistment and would not
change.  The AY was established based on the date of enlistment.
Participants enrolled in the ROTC/SMP (Simultaneous Membership Program)
advanced course were authorized retirement points and service.  If the
source of commission was directly from the ROTC/SMP, the AY would be
established and points and service time would be awarded.  However, if the
service was not commissioned or the officer withdraws from the program, the
ROTC time was creditable for points and service.  If the officer later
resigned the commission and returned to an enlisted status, any time spent
in the ROTC/ROTC/SMP would be creditable toward retirement.

12.  The applicant was provided a copy of this opinion for possible
rebuttal or comment prior to consideration of his case.

13.  In his rebuttal, the applicant stated that he appreciated the efforts
of the 81st RST and concurred with the analysis of Army Regulation 140-185.
 However, the question of whether retirement points may be awarded is not
the central issue in his inquiry and irrelevant to his case, since he
qualified for statutory retirement as a RA officer with 20 or more years of
active Federal commissioned service (AFCS).  What he found inexplicable was
that the 4 years he served as an Army Reserve enlisted Soldier in a USAR
Control Group, in which he was contractually obligated and honorably
discharged to accept an officer's commission, counts towards absolutely
nothing.  He had done his own research of applicable regulations, including
Army Regulation 140-185, Army Regulation 136-91, and Army Regulation 145-1.


14.  The two latter regulations spoke clearly to the obligations he
assumed; including punitive sanctions in the event he had failed to meet
the terms of his   4-year Army Scholarship contract.  Those included, but
were not limited to, being called to AD to serve for 6 years in an enlisted
status.  During that 4-year period, he spent more time in uniform
undergoing field training, garrison/classroom instruction (including daily
physical training) than Reserve Soldiers in any troop program unit (TPU).
In fact, while the first 2 years of Reserve or Guard service are creditable
for those in the SMP, ROTC scholarship cadets were expressly prohibited
from SMP participation.

15.  He describes the training and courses completed by him and his peers.
He asks that this Board provide him a cogent, fact based explanation of his
official, legal status while serving as a contracted member of the USAR
Control Group, from August 1972 to May 1976.  He is not seeking
remuneration of any kind, nor is he asking to be awarded retirement points.
 He is interested in knowing by way of comparison whether his counterparts
at the United States Military Academy (USMA), West Point New York, receive
service credit for their pre-commissioning training.  The total and AD
service obligation of 4-year ROTC Scholarship cadets is virtually
identical, and in fact his RA DOR was adjusted to match that of West Point
cadets, even though he was commissioned and entered AD nearly a month
later.


16.  Army Regulation 140-185 provides the policy for training and
retirement point credits for members of the USAR.  Paragraph 1-3 states
that only Ready Reserve Soldiers (other than ROTC and Delayed Entry Control
Group Soldiers) and Active Standby Reserve are authorized retirement point
credit.  As an exception to policy, the exclusion of ROTC service,
potential participants in the ROTC/SMP (those not enrolled in the Advance
ROTC) are authorized retirement
points and to be paid for drills in the grade and years of service
attained.  Participants in the ROTC/SMP enrolled in the Advanced ROTC
Course are authorized retirement points credit and pay for drills until
commissioned.  Points and service time while in the advanced course are
then removed.

17.  The Department of Defense Financial Management Regulation (DODFMR),
volume 7A, chapter 1, paragraph 0101, prescribes service creditable for pay
purposes.  It states 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 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.

18.  Department of Defense (DOD) Financial Management Regulation, Volume
7A, Chapter 1, covers basic pay.  Paragraph 010101 pertains to service
which is creditable.  Paragraph D pertains to other creditable service.
Subparagraph 010101d (10) states that for service to be creditable, a cadet
must be enrolled in an Army, Navy, or Air Force ROTC Program and
concurrently drilling in the Selected Reserve with duty performed on or
after 1 August 1979.

19.  Subparagraph 010101d (15) states that prior provisions of law excluded
the
SMP from creditable service for commissioned officers effective 13 October
1964.  Public Law 104-201, section 507, dated 23 September 1996, amended
the provisions to provide service credit for the SMP retroactive to
1 August 1979. The revisions resulted in no increase in pay, retired or
retainer pay before the date of enactment, 23 September 1996.  Service in
the program for enlisted members who retain that status remains creditable
under all provisions.

20.  Department of Defense (DOD) Financial Management Regulation, Volume
7A, Chapter 1, covers basic pay.  Paragraph 010102 pertains to service
which is not creditable.  Subparagraph 010102A(6) states that for
commissioned officers, any period of service performed after 12 October
1964 and prior to 1 August 1979, in ROTC, even if such member held
concurrent Reserve status is not creditable.
21.  Title 10, U. S. (US) Code, section 971(a) states 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.  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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that the applicant was enrolled in the ROTC
Scholarship Program from 30 August 1972 to 14 May 1976.  In accordance with
regulation, this period of service was not creditable toward retirement due
to the applicant's ROTC service.

2.  The applicant was commissioned on 15 May 1976 with concurrent call to
AD. He was later appointed an RA officer and attained the rank of captain
and was released from AD on 31 May 1981.

3.  He was transferred to the USAR Control Group (Reinforcement) and was
appointed as a Reserve commission officer in the rank of captain effective
1 June 1981.  He was ordered to AD where he continued to serve and attained
the rank of major.  The applicant was released from AD effective
30 September 1997 and was placed on the Retired List effective 1 October
1997.  He had completed 20 years and 12 days of AFS and had completed
21 years, 4 months, and 16 days of total service for basic pay purposes

4.  The applicant stated in his rebuttal that he appreciated the efforts of
the 81st RST and concurred with the analysis of the Army Regulation 140-
185; however, what he found inexplicable was that the 4 years he spent as
an Army Reserve Soldier (ROTC) counted toward nothing.

5.  He asks and is interested in knowing whether his counterparts at the
USMA received service credit for their pre-commissioning training.  The
answer to which is Title 10, US Code, section 971, which 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 any
other service.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 30 September 1997; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 29 September 2000.  The applicant did not file within
the 3-year statute of limitations and has not provided a compelling
explanation or evidence to show that it would be in the interest of justice
to excuse failure to timely file in this case.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_ALR___  ___MM__  __SLP___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                  _____Shirley L. Powell____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050002468                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051213                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |19970930                                |
|DISCHARGE AUTHORITY     |AR 635-200, chapter 12                  |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |113                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |

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