RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  4 December 2007
	DOCKET NUMBER:  AR20050018367 


	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.  


Ms. Catherine C. Mitrano

Director

Ms. Anita McKim-Spilker

Analyst


The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Ms. Eloise C. Prendergast

Member

Mr. James R. Hastie

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, in effect, that his time served in the Army's Early Commissioning Program (ECP) and Education Delay Program (EDP) (from
11 May 1985-6 July 1991) be calculated as active duty service. 

2.  The applicant states, in effect, that his active duty service time is not correctly calculated in his military record.  He was commissioned as a second lieutenant (2LT) on 22 May 1985 through the ECP, and was then in the EDP while completing his undergraduate and graduation education.  He was called to active duty on 6 July 1991 prior to completing his law degree, and believes that the years he spent in EDP status should be creditable as active duty service. 

3.  The applicant provides a copy of his orders for active duty; a copy of his appointment memoranda; a copy of his approval for the EDP; his assignment orders to the U.S. Army Reserve (USAR) Control Group (Officer Active Duty Obligor (OADO)); a copy of his Officer Record Brief (ORB); and copies of informational pamphlets for delayed officers.

CONSIDERATION OF EVIDENCE:

1.  The applicant is a lieutenant colonel in the Regular Army.

2.  On 22 May 1985, the applicant was appointed as a USAR officer through the ECP at the New Mexico Military Institute upon completion of his Associate of Arts Degree.  

3.  Effective 17 May 1985, he was relieved from the 3rd ROTCR Accession Detachment, Fort Riley, Kansas, and assigned to the 4013th U.S. Army Garrison, Bossier City, Louisiana.  His additional instructions directed him to comply with the instructions provided by the Commanding General, USAR Components Personnel and Administration Center (RCPAC), concerning continuation of his delay status and, if applicable, application for Regular Army or active duty.  His anticipated graduation date was established as 31 May 1987.

4.  The applicant enrolled in Boston University with the anticipated May 1987 graduation date for his undergraduate degree.  On 1 September 1985, he was reassigned from Bossier City to the USAR Control Group (OADO), RCPAC, St. Louis. 

5.  On 17 February 1987, the applicant's request for delay for educational purposes (graduate degree) was tentatively approved.  His final approval was not available for review; however, since he continued in an EDP status, it is presumed that his annual requests for delay were approved.

6.  On 15 May 1987, the applicant completed his undergraduate degree at Boston University.

7.  On 21 May 1988, the applicant was promoted as a USAR officer to first lieutenant.

8.  On 7 July 1991, the applicant was ordered to active duty to attend the Chemical Officers Basic Course.  

9.  On 16 March 2005, the applicant was commissioned as a Regular Army officer in the Chemical Corps.

10.  In processing this case, an advisory opinion was obtained from the Chief, Retirements and Separations Branch, HRC-Alexandria, who recommended denial of the applicant's request.  His time in the USAR Control Group (OADO) from 1 September 1985 through 5 July 1991 does not count toward active duty credit in accordance with the Department of Defense (DoD) Financial Management Regulation, Volume 7A, Chapter 1, Section 010102A9, and his time in the Army's ECP and USAR Control Group is not creditable for retirement points in accordance with Army Regulation 140-1 (Mission, Organization, and Training), Table 2-1.  It was noted that his pay entry basic date (PEBD) of 7 July 1991 and his date initial entry into military service (DIEMS) of 22 May 1985 were correct and already provided credit for the ECP.

11.  On 26 September 2007, the applicant was provided with a copy of the advisory opinion for comment and/or rebuttal.

12.  On 31 October 2007, the applicant respectfully requested that the advisory opinion not be accepted by the Board.  He believes his time in the ECP and USAR Control Group are creditable for retirement points, since Table 2-1, Army Regulation, allows creditable service for assignment status in the Ready Reserve Control Group (Annual Training) and the Standby Reserve (Active Status) Control Group.  He contends that his orders assigned him to the USAR Control Group in an educational delayed status as a member of the Ready Reserve in an active status.  Further, paragraph 11 of the informational pamphlet that he received for delayed officers in April 1984, stated that "all officers in delay status are in an active Ready Reserve status in accordance with Army Regulation 135-155."  Therefore, his assignment status as an active Ready Reserve officer corresponds with and designates his time as creditable service for retirement points.    

13.  The applicant provided a copy of an informational pamphlet he received when he was commissioned through the ECP in 1984.  Paragraph 11 of this pamphlet states:  "..While you are in delay status, you are a member of the Ready Reserve and you are eligible for promotion on the same basis as any other member of the Ready Reserve not on active duty."  

14.  Army Regulation 140-1 prescribes the policy on the USAR mission, its organization, and training.  Paragraph 2-14d, in relevant part, states that the USAR Control Group (OADO) consists of active duty officers, appointed in the USAR, who do not enter on active duty at the time of their appointments.  They will not be involuntarily required to train without direction of Headquarters, Department of the Army.

15.  Paragraph 2-14a of Army Regulation 140-1 states that the USAR Control Group (AT) consists of non-unit Ready Reserve Soldiers with a training obligation. They may be assigned to units by the CG, HRC to other appropriate training deemed necessary by their personnel management officers.  These Soldiers also must take part in AT when so directed.

16.  Paragraph 2-15 of Army Regulation 140-1 states that the Standby Reserve consists of Soldiers who maintain their military affiliation without being in the Ready or Retired Reserve.  Membership is limited to those Soldiers having mobilization potential.  Soldiers on the Standby Reserve Active Status List may participate in Reserve training activities at no expense to the government, earn retirement points, and be eligible for promotion.  They are not eligible for promotion to general officer ranks.

17.  Table 2-1 of Army Regulation 140-1 indicates that members assigned to the USAR Control Group (OADO) are not to be credited with retirement points.

18.  DoD Financial Management Regulation, Volume 7A, Chapter 1, Section 010102A9, stipulates that time served in a Reserve Component before beginning active duty or an initial period of active duty for training for enlistment in a Reserve Component is not creditable active service to compute a basic pay date.

19.  Army Regulation 600-8-24 (Officer Transfers and Discharges) prescribes policies and procedures governing transfer and discharge of Army officer personnel.  Paragraph 6-13 states, in relevant part, that an officer who has completed 20 but less than 30 years of active Federal service may voluntarily request retirement.  

20.  Paragraph 6-14, Army Regulation 600-8-24 states that voluntary retirement eligibility is determined by active Federal service.  The years of active Federal service are computed by adding all active service in the Army.

21.  Title 10, U.S. Code, Section 101, Definitions, states in pertinent part that, "The Term active duty means 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 concern."

22.  Title 10, U.S. Code, section 12731(a) states that a person is entitled, upon application, to retired pay if the person is at least 60 years of age, has performed at least 20 years of qualifying service.  The term "good years" is an unofficial term used to mean years in which 50 or more retirement points are earned during each year and which count as qualifying years of service for retirement at age 60.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's ORB correctly reflects his PEBD as 7 July 1991 and his DIEMS as 22 May 1985.  As such, he has been credited for his time as an early commissioned 2LT and while in an educational delay status.  This time cannot be calculated as active Federal service because he did not actually perform any active Federal service during the period in question.  

2.  While a member of the EDP the applicant was appropriately assigned to the USAR Control Group (OADO).  The USAR Control Group (OADO) consists of active duty officers, appointed in the USAR, who do not enter on active duty at the time of their appointments, e.g., who are in an educational delay status.  Contrary to the applicant's contentions, he was not assigned to the USAR Control Group (AT) or the Standby Reserve Active Status List and his assignment orders clearly show him being assigned to the USAR Control Group (OADO).   

3.  The applicant is a commissioned Regular Army officer and will presumably retire under the provisions of Army Regulation 600-8-24 when he has met the required years of active Federal service to qualify for retirement.  As such, his arguments regarding the awarding of retirement points under Army Regulation 140-1, Table 2-1, are not relevant to his type of retirement.  The awarding of retirement points under Title 10, U.S. Code, section 12731(a) to obtain a qualifying year of service, applies to USAR members who are seeking non-regular retirement at age 60.  If the applicant is seeking the award of retirement points for his years as a member of the USAR Control Group (OADO), that is an administrative function and does not require the authority of this Board.  He should request a retirement summary from Commander, U.S. Army Human Resources Command, St. Louis, ATTN:  AHRC-PAP-T, Reserve Way, St. Louis, MO  63132-5200

4.  Given the above, the applicant did not show that his record is in error or unjust.  Therefore, there is no basis to grant his request. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__lds___  __ecp___  __jrh___  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.




							Linda D. Simmons
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20070018367
SUFFIX

RECON

DATE BOARDED
20071204
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
135.0000
2.

3.

4.

5.

6.