RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        6 December 2005
      DOCKET NUMBER:  AR20050006417


      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. Bernard P. Ingold             |     |Chairperson          |
|     |Mr. Donald w. Steenfott           |     |Member               |
|     |Mr. Edward E. Montgomery          |     |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 and retirement
purposes be recalculated to include the time he spent as a cadet at the U.
S. Military Academy (USMA).

2.  The applicant states he entered the Academy in June 1967 after the
first year of a 3-year Regular Army enlistment.  His DD Form 214 (Armed
Forces of the United States Report of Transfer or Discharge) for the
periods ending 21 June 1969 and 1 February 1984 credited him with 3 years
of service.  However, credit for active duty from June 1967 to June 1969
was not credited during his 12 years and 8 months of active duty service or
his 15 years of Reserve service and have not been credited for retirement.
Those 2 years of service should be provided to him in accordance with
recent precedent in which other classmates from West Point Class of 1971
have received that retroactive compensation and retirement credit.

3.  The applicant provides two DD Forms 214 (for the periods ending 21 June
1969 and 1 February 1984), and a Chronological Statement of Retirement
Points.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 1 October 1999 (the date he was discharged from the U. S.
Army Reserve).  The application submitted in this case is dated 27 April
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.  The applicant was born on 1 November 1948.  He enlisted in the Regular
Army on 22 June 1966 for 3 years.  He was appointed to the USMA as a cadet
on 3 July 1967.

4.  The applicant was released from active duty on 21 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 21 June 1969, item 22b of
which shows he had 3 years of total active service.

5.  The applicant graduated from the USMA and was commissioned in the
Regular Army on 9 June 1971.

6.  The applicant was discharged on 1 February 1984 for failure of
selection for permanent promotion.  Item 12c of his DD Form 214 for the
period ending           1 February 1984 shows he had 3 years of total prior
active service.

7.  The applicant was appointed a commissioned officer in the U. S. Army
Reserve on 2 February 1984.  On 1 October 1999, he was honorably discharged
from the U. S. Army Reserve.

8.  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.

9.  Title 10, U. S. 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.  Had the applicant ever served as an enlisted person after his
graduation from the USMA, those contested 2 years of service would have
been creditable for




pay purposes.  Had he retired (or should he retire) as an enlisted person,
those
2 years would have been/will be creditable for retirement purposes.
However, 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.

2.  The applicant mentions "recent precedent" but provides no evidence of
such "precedent."  If the circumstances in those "precedent" cases had been
similar to the applicant's (i.e., enlisted persons who attended the USMA
during their initial enlistment, graduated from the USMA, served only as
commissioned officers and retired (or would retire) as commissioned
officers), then the officers in those "precedent" cases were erroneously
awarded service credit.  It is not reasonable for the applicant to expect
that, because an error was made in another case, a similar error should be
made in his case.

3.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 1 October 1999; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on         30 September 2002.  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

__bpi___  __dws___  __eem___  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.




                                  __Bernard P. Ingold___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050006417                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20051206                                |
|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.                      |                                        |


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