RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           11 August 2005
      DOCKET NUMBER:  AR20050010744


      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. John N. Slone                 |     |Chairperson          |
|     |Ms. Deborah S. Jacobs             |     |Member               |
|     |Mr. Michael J. Flynn              |     |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 earlier request to show
his retirement eligibility date as sometime in 2005.

2.  The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel states the Board, in its earlier Record of Proceedings, may
have missed the thrust of the applicant's argument.

2.  Counsel states the applicant entered active duty most recently in 1993,
having been informed he would be eligible for retirement on 30 November
2005.  He was age 37 when he reentered.  The date of his future retirement
eligibility by reason of longevity was a key factor in his decision to go
back on active duty.  Had he known his 20-year retirement eligibility would
not have ripened until 2011 he would not have come back into uniform.  A 5-
year discrepancy would have been a material factor in his decision making.

3.  Counsel states there is no direct written confirmation of retirement
eligibility date information furnished to the applicant before he executed
his Dental Corps contract.  There is, however, circumstantial evidence in
the form of an Officer Personnel Utilization System Worksheet dated 2
February 1993.  The Worksheet indicated the applicant would be afforded 8
years, 11 months, and 9 days of entry grade credit.  Of note, that period
of time could not have been constructive credit for dental education for
three reasons:  first, it exceeds the maximum period of constructive credit
permissible for dental education; second, the applicant did not enter
dental school until 1989, long after the 15 September 1981 cutoff as per
the Defense Officer Personnel Management Act (DOPMA), and third, because
Department of Defense Directive (DODD) 1312.3 precludes officers who begin
commissioned service after obtaining additional education from receiving
constructive credit for time spent in an active status as a commissioned
officer or on active duty and the applicant was a commissioned officer in
an active status or on active duty from 1979 until his transfer to the
Dental Corps in 1993.

4.  Counsel states, in addition to relying on express oral representations
made to him at the time of his re-entry on active duty, the applicant also
relied on Officer Record Briefs (ORBs) prepared on 9 July 1996 and 20
November 2000, each of which showed his date of projected/mandatory
retirement to be 30 November 2005.  Not until 2004, eight years after the
1996 ORB, did the Army determine his retirement eligibility would not occur
until 31 July 2011.  The very fact the Army staff could generate three
different dates, years apart, renders it impossible to have confidence in
their calculations even now.

5.  Counsel states that had the applicant known in 1996 this was the case
(i.e., his retirement eligibility date would be July 2011), he could have
made the career and personal decision not to invest the additional five
years and left the Army at age 40.  Instead, he was lulled into a false
sense of security by the 2005 retirement eligibility date shown on both the
1996 ORB and its successor in 2000 and was only apprised of that repeated
error in the summer of 2004, by which time he was nearly 48 years of age.
By that age, his professional opportunities were clearly different from
what they would have been nearly a decade earlier.

6.  Counsel states that on the above facts, including the repeated
references to 2005 as the applicant's retirement eligibility date on his
ORBs, not to mention the information he was given at the time of his
accession in 1993, there is substantial basis for finding an error or
injustice has occurred.  The only fitting relief would be to adjust the
applicant's retirement eligibility date to 30 November 2005 or, in the
alternative, make his pay entry basic date 1971 to truly reflect those 9
years, and adjust his rank with all due back pay and allowances.

7.  Counsel provides, as new evidence, an Officer Personnel Utilization
System Worksheet; a DA Form 7301-R (Officer Service Computation for
Retirement) dated 12 March 2004 with extracts from his service records;
copies of almost all his leave and earnings statements beginning with June
1980; a copy of his officer basic course diploma; a copy of his Field
Artillery Cannon Battery Officer Course diploma; and a copy of his Airborne
Course Diploma.

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
AR20040000773 on 3 February 2005.

2.  The applicant was appointed a Reserve commissioned officer on 5 October
1979 and granted Federal Recognition in the Army National Guard on
     13 October 1979.  DD Forms 214 (Certificate of Release or Discharge
from Active Duty) for the period ending 17 October 1980 show he served on
active duty for 4 months and 8 days while attending the Officer Basic
Course; for the period ending 16 April 1984 show he served on active duty
for 5 months and     12 days while attending the Special Operations
Detachment Officer Course; and for the period ending 31 May 1991 show he
served on active duty for 3 months and 11 days during Operation Desert
Storm.
3.  An Army National Guard Retirement Points History Statement shows he had
a total of 764 active duty points.

4.  On 27 August 1992, the applicant was separated from the Army National
Guard and transferred to the U. S. Army Reserve Control Group
(Reinforcement).  On 22 February 1993, he was appointed a Reserve
commissioned officer in the grade of captain in the Dental Corps.  ABCMR
Docket Number AR20040000773 indicates his appointment letter showed 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.  This letter is not available
with this current application or in his Official Military Personnel File.
On or about 7 June 1993, he was ordered to active duty.

5.  In the previous consideration of his case, the applicant provided two
ORBs, one dated 9 July 1996 and one dated 20 November 2000.  Both showed a
BASD (basic active service date) of 9 November 1985, a basic date of
appointment of 13 October 1979, a date of entry on current tour of 7 June
1993, and a date of projected/mandatory retirement of 30 November 2005.

6.  Two DA Forms 7301-R prepared by the U. S. Army Human Resources Command
are available.  One dated 12 March 2004 shows the applicant had completed 2
years, 2 months, and 8 days of active service prior to his entry on his
current 7 June 1993 tour and had a projected retirement date of 31 July
2011. This form also indicated in the remarks section, "*Dental school from
Aug 89 to May 93 is not creditable service for pay.  The 8 years, 11
months, and 9 days of svc on appt ltr is not the result of prior military
svc nor is it valid for pay entry basic date."

7.  On 1 August 2005, the individual who prepared that DA Form 7301-R
informed the Board analyst she took that statement directly from the
applicant's appointment orders and could not otherwise comment on what the
statement meant.

8.  The DA Form 7301-R, dated 17 August 2004, shows the applicant had
completed 1 year, 10 months, and 25 days of active service prior to his
entry on his current 7 June 1993 tour.

9.  DODD 1312.3, Subject:  Service Credit for Commissioned Officers,
paragraph 1.2 states it implements section 533 of Title 10, U. S. Code to
update policies and procedures governing the granting of service credit to
persons upon appointment, designation, or assignment as Regular
commissioned officers, except those in health professions (emphasis added).
10.  Army Regulation 135-101 (Appointment of Reserve Commissioned Officers
for Assignment to Army Medical Department Branches) provides policy for the
appointment of reserve commissioned officers for assignment to Army medical
branches.  In pertinent part, it states the grade and date of rank upon
original appointment and assignment to an Army Medical Department (AMEDD)
branch will be determined by the number of years of entry grade credit
awarded.  Except as limited by maximum credit limits, entry grade credit
granted will be the sum of constructive service credit and the credit for
prior active commissioned service.  Table 3-1 states that 4 years of
constructive service credit is awarded for the basic qualifying degree
(such as M.D.).

11.  Title 10, U. S. Code, section 12207(a)(1) state, for the purpose of
determining the grade and the rank within grade of a person receiving an
original appointment as a Reserve commissioned officer, the person shall be
credited at the time of appointment with any commissioned service performed
before such appointment.  Section 12207(a)(2) states the Secretary of
Defense shall prescribe regulations to authorize the Secretary of the
Military Department concerned to limit the amount of prior commissioned
service with which a person receiving an original appointment may be
credited.

12.  The Department of Defense Financial Management Regulation (DODFMR)
stipulates the policy, regulation, and procedures within the area of
responsibility of the Under Secretary of Defense.  Paragraph 010105, DODFMR
states, in pertinent part:

      A.  Some medical and dental officers are entitled to extra credit for
    longevity (emphasis added) purposes to reflect the time spent in
    medical or dental school.  Medical and dental officers must meet one or
    more of the following criteria to be entitled to the constructive
    credit:


            1.  On or before September 15, 1981, the officer already had
    the constructive service credit; the credit is not lost if there is a
    break in service either before or after that date.


            2.  On September 14, 1981, the individual was enrolled either
    in the Armed Forces Health Professions Scholarship Program or the
    Uniformed Services University of Health Sciences, completed that
    program, and was appointed as a medical or dental officer.


            3.  On September 14, 1981, the individual was participating in
    a program that credited years of service and led to an appointment as
    an officer in the Army, Navy, Air Force or Marine Corps.


13.  Paragraph 010201 of the DODFMR provides that the time a member serves
while enrolled in the Armed Forces Health Professions Scholarship and
Financial Assistance Programs, or while a student at the Uniformed Services
University of Health Sciences, is not creditable service in computing a
basic pay date (emphasis added).

14.  Department of Defense Instruction (DODI) 6000.13 (Medical Manpower and
Personnel) implements policy, assigns responsibilities, and prescribes
procedures to carry out medical manpower and personnel programs.  Paragraph
6.1 states the entry grade credit to be awarded shall equal the sum of
constructive service credit and prior commissioned service (as outlined in
the DODI) credit except in cases where the total exceeds the maximum credit
allowed.  A period of time shall be counted only once when computing entry
grade credit.

15.  DODI 6000.13, paragraph 6.1.1.2 states service on active duty or in an
active status as a commissioned officer in any of the Uniformed Services,
but not in the corps or professional specialty in which being appointed,
shall be awarded 1/2 day of credit for each day served in the case of
individuals seeking an original appointment as a health professions
officer.

16.  DODI 6000.13, paragraph 6.1.1.3 states commissioned service on active
duty or in an active status while participating in an educational program
leading to appointment in a specialty in which constructive service credit
is awarded shall be awarded day-for-day credit for service performed.  An
officer on active duty or in an active status who completes a program that
would qualify for credit under subparagraph 6.1.2.2, below, in less than
the number of years normally required to complete such education, may be
given constructive credit by the Secretary of the Military Department
concerned in the amount of the difference between the actual number of
years the officer took to complete and the amount of time normally required
to complete the program.

17.  DODI 6000.13 paragraph 6.1.2.2. states constructive service shall be
awarded:

     Paragraph 6.1.2.2.1 -- four years of constructive service credit for
completion of first professional degrees that include medical (M.D.) and
dental (D.D.S. or D.M.D.).

18.  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 voluntary retirement eligibility is
determined by AFS (Title 10, U. S. Code, section 3926).
19.  Title 10, U. S. Code, section 3926(a)(1) states, for the purpose of
determining whether an officer of the Army may be retired under section
3911 (a commissioned officer who has completed 20 years or more) of this
title, his years of service are computed by adding all active service
performed as a member of the Army or the Air Force.

20.  Title 10, U. S. Code, section 101 defines "active duty" as 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.  "Active service"
means service on active duty or full-time National Guard duty.

DISCUSSION AND CONCLUSIONS:

1.  As counsel acknowledges, the applicant provides no evidence to show he
was informed he would be eligible for retirement on 30 November 2005.  It
is acknowledged his ORBs for a period of time reflected a BASD of 9
November 1985 although it cannot be determined what service was used to
establish this date or who established it.  Nevertheless, the Army is not
liable for the erroneous actions of its officers, agents, or employees,
even though committed in the performance of their duties.

2.  The fact that 20 years of active duty is normally (bar drawdown
periods) required for a length of service retirement is common knowledge in
the Army, to include the Reserve components.  The applicant provides
insufficient evidence to show why he would have accepted information
otherwise knowing, when he entered active duty in 1993, he had previously
completed either a little more or a little less than 2 years of active
duty.

3.  It is acknowledged that the above phrase "a little more or a little
less than        2 years of active duty" is still imprecise.  However,
calculating precise figures for a Reserve officer whose periods of active
duty time are stretched out in small bits over an almost 15 year period is
difficult.  It is not the resolution the applicant desires; however, he has
time to ensure the U. S. Army Human Resources Command has a record of every
period of active duty he can substantiate.

4.  Counsel contends the Officer Personnel Utilization System Worksheet,
dated 2 February 1993, is circumstantial evidence to show the applicant was
informed his retirement eligibility date would be November 2005.  He
contends the 8 years, 11 months, and 9 days of entry grade credit could not
have been constructive credit for dental education for three reasons:
first, it exceeds the maximum period of constructive credit permissible for
dental education; second, because he did not enter dental school until
1989, long after the 15 September 1981 cutoff as per DOPMA; and third,
because DODD 1312.3 precludes officers who begin commissioned service after
obtaining additional education from receiving constructive credit for time
spent in an active status as a commissioned officer or on active duty.

5.  Counsel's contentions are correct only as to the first reason he gives:
 The maximum constructive credit the applicant could have been awarded for
his dental education was 4 years.  However, neither counsel's second or
third reason are applicable in the applicant's case:

     The 15 September 1981 cutoff concerns constructive credit for
longevity purposes, i.e., for pay purposes.  It does not affect
constructive credit for dental school attendance for entry grade credit;
and

     DODD 1312.3 does not apply to commissioned officers in health
professions.

6.  It cannot be determined why the applicant's appointment letter, which
is no longer available, indicated the 8 years, 11 months, and 9 days of
constructive service he was granted was not the result of prior military
service because that is exactly what more than half of it appears to have
been based on.

7.  In accordance with DODI 6000.13, paragraph 6.1.2.2.1, the applicant was
authorized 4 years of constructive service credit for his dental degree.

8.  It appears the applicant began his dental education in August 1989.  He
had originally been appointed a commissioned officer on 5 October 1979 and
therefore completed about 9 years and 10 months of commissioned service,
not in the Dental Corps, prior to starting his dental education.  In
accordance with DODI 6000.13, paragraph 6.1.1.2, he was authorized 1/2 day
per day credit for that period of time.  (He was not authorized 1/2 day per
day credit for the period August 1989 until he was appointed a Dental Corps
officer since a period of time may be counted only once.)  He was therefore
authorized an additional period of constructive credit of approximately 4
years and 11 months.

9.  The 4 years the applicant was authorized for his dental degree plus the
approximately 4 years and 11 months he was authorized for his prior
commissioned service just about equals the 8 years, 11 months, and 9 days
of constructive service for entry grade credit he actually was granted.

10.  Title 10, U. S. Code, section 12207(a) authorizes constructive credit
to certain commissioned officers for the purpose of determining the grade
and the rank within grade of a person receiving an original appointment as
a reserve commissioned officer.  Since constructive credit is authorized by
law only for the purpose of determining the grade and the rank within
grade, it would not be appropriate to adjust the applicant's pay entry
basic date to 1971 to "truly reflect those 9 years."

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__jns___  __dsj___  __mjf___  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 AR20040000773, dated 3 February 2005.




            __John N. Slone_______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050010744                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |YYYYMMDD                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |102.08                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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