RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  21 February 2007
	DOCKET NUMBER:  AR20060000558 


	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

Mr. G. E. Vandenberg

Analyst


The following members, a quorum, were present:


Ms. Marla J. N. Troup

Chairperson

Mr. John G. Heck

Member

Mr. Donald L. Lewy

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 records be corrected and he receive service credit and retirement points for his period of service as a cadet at the United States Military Academy (USMA).

2.  The applicant states, in effect, that there is no regulation that specifically prohibits his receipt of credit for his service at the USMA now that he is in an enlisted status.  He states that all regulations and law state that enlisted personnel always receive credit for this period of service.  He further notes that all current regulations state credit is disallowed for personnel who are currently serving as officers.  

3.  The applicant provides a three-page personal statement, an extensive packet of documents from his service personnel file, excerpts from various regulations, and copies of correspondence related to his attempts to receive credit for his attendance at the USMA.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army (RA) under the Delayed Entry Program (DEP) on 17 January 1975.  He entered active duty on 30 January 1975 with a four-year active duty and two year inactive Reserve service obligation. 

2.  The applicant was selected to attend the USMA as a cadet and entered the USMA on 7 July 1976. 

3.  Headquarters United States Military USMA Orders 214-10, dated 6 November 1978 directed that the applicant, a PFC (private first class), be relieved from active duty and transferred to the United States Army Reserve (USAR) Control Group (Reinforcement) on 29 January 1979, with a 6 year service obligation.

4.  A 29 January 1979 DD Form 214 (Report of Separation from Active Duty) shows he had 4 years of net service with 13 days of inactive service.  His total service for pay purposes is listed as 4 years and 13 days.  Item 27 (Remarks) includes the statement “Item 18a includes the notation of service as an USMA cadet from 7 July 1975 through 29 January 1979."

5.  The available records do not contain any specific information as to what the applicant was doing between 29 January 1979 and 28 May 1980, it is presumed that he continued as a cadet at the USMA during this period.
6.  On 28 May 1980, the applicant was commissioned a second lieutenant in the Regular Army as a part of the 1980 USMA graduating class.  

7.  A 13 December 1985 DA Form 1506 (Statement of Service - For Computation of Length of Service for Pay Purposes) indicates the applicant had 13 days credit for service under DEP; 1 year, 5 months, and 7 days active duty enlisted service; 3 years, 10 months, and 21 days as an USMA cadet; and that he had been on active duty from 28 May 1980 through the date of the report.

8.  The applicant served on continuous active duty as a commissioned officer attaining the rank of major effective 1 April 1992.

9.  On 2 November 1992 the applicant submitted an unqualified resignation to allow him to accept civilian employment.  During this same time frame the applicant requested appointment in the USAR as a commissioned officer.

10.  He was discharged on 15 January 1993.  His DD Form 214 shows he had 12 years, 7 months, and 18 days of creditable service with 1 year, 5 months, and 7 days of prior active service and 3 years, 11 months, and 4 days of prior inactive service.

11.  He was also appointed a major in the USAR and executed an Oath of Office on 15 January 1993.  The available records indicate the applicant served in the USAR Control Group (Reinforcement).

12.  On 23 May 2000 the applicant was notified that, since he had been twice passed over for promotion to lieutenant colonel, he had to be separated.  The notification indicated his options were to be discharged, to transfer to the Retired Reserve, or to be retained to complete 20 years.

13.  On 25 May 2000, he was notified that changes in regulations required that he be discharged and that the discharge from an active status was mandatory.

14.  The applicant was discharged as an officer in the USAR effective 25 May 2000.

15.  On 15 December 2000 he enlisted in the USAR in pay grade E-5 and was assigned to a Troop Program Unit (TPU).  His enlistment document does not include a denotation of his prior service.


16.  The applicant was ordered to active duty in support of Operation Enduring Freedom.  He served on active duty for the period 25 February 2003 through 22 September 2003, and was released from active duty with assignment back to his USAR TPU.  His DD From 214 indicates he had 6 months and 28 days of creditable service with 14 years and 25 days of prior active service and 14 years and 13 days of inactive service.  

17.  The applicant was promoted to sergeant first class on 15 July 2004 and on 16 July 2004 was activated in support of Operation Noble Eagle for a period of 365 days.

18.  An 20 February 2007 ARPC Form 249-2-E (United States Army Reserve Personnel Command Chronological Statement of Retirement Points) lists the applicant’s periods of service and status as follows: 

a.  ENL (enlisted), DEP, from 17 January 1975 through 29 January 1975;

b.  ENL, RA, from 30 January 1975 through 6 July 1976;

c.  ENL, break, from 7 July 1976 through 27 July 1980 (no qualifying service during this period);

d.  COM (commissioned), RA, from 28 July 1980 through 15 January 1993;

e.  ENL, break, from 16 January 1993 through 14 December 2000 (no qualifying service during this period); 

f.  ENL, USAR, from 15 December 2000 through 14 December 2005; and

g. COM, USAR, from 15 December 2005 through 14 December 2006. 

19.  The applicant is shown to have 20 years, 1 month, and 9 days of qualifying service for retirement as of 14 December 2006.  He was issued his Notification of Eligibility for Retired Pay at Age 60 on 19 January 2007.

20.  The applicant was discharged from his enlisted status on 6 June 2006 and accepted a USAR commission in the rank of Major on 7 June 2006. 

21.  In the development of this case an advisory opinion was obtained from the Director of the United States Army Human Resources Command, 81st Regional Support Team-Eastern Regional Management, St. Louis, Missouri.
22.  The Director sets forth the applicable regulations as addressed by the applicant.  He states, in effect, that since the applicant accepted a commission after completion at the USMA there is no provision in law or regulation that would allow him to receive service credit service for this period of time.

23.  A copy of the opinion was forwarded to the applicant.  He submitted a rebuttal on 23 July 2006, wherein he states that it is difficult to respond to citations when the regulations are not available or are not specific enough to determine what is cited.  He included highlighted copies of regulations to support his contentions.

24.  Title 10, United States Code (USC), Chapter 31, Section 516(a), states the enlistment or period of obligated service of an enlisted member of the armed forces who accepts an appointment as a cadet at the United States Military USMA may not be terminated because of the acceptance of that appointment. However, while serving as a cadet at an USMA, they are entitled only to the pay, allowances, compensation, pensions, and other benefits provided by law for such a cadet. Section 516(b) reads if a person covered by subsection (a) is separated from service as a cadet for any reason other than his appointment as a commissioned officer of a regular or reserve component of an armed force or because of a physical disability, he resumes his enlisted status and shall complete the period of service for which he was enlisted or for which he has an obligation, unless he is sooner discharged.

25.  Title 10, USC, Chapter 49, Section 971, states officers may not count enlisted service performed while serving as a cadet.  The period of service under an enlistment or period of obligated service while also serving as a cadet at the United States Military USMA under an appointment accepted after 25 June 1956, may not be counted in computing, for any purpose, the length of service of an officer of an armed force.

26.  Army Regulation 135-180 (Qualifying Service for Retired Pay Nonregular Service) implements statutory authorities governing the granting of "retired pay" to Soldiers and former Reserve components Soldiers.  In pertinent part it states at:

a.  Paragraph 1-4 (Retired Pay), defines Retired pay as pay granted Soldiers and former Reserve components Soldiers under title 10, USC, section 1331, after completion of 20 or more years of qualifying service and upon attaining age 60.  This pay is based on the highest grade satisfactorily held at any time during an individual's entire period of service, other than in an inactive section of a Reserve component. 

b.  Paragraph 2-9k, that time spent as a cadet or midshipman at the U.S. Military USMA, the U.S. Naval USMA, and the U.S. Coast Guard USMA may be counted as service for basic pay purposes in the computation of pay for enlisted men, but not for commissioned officers except as indicated in paragraph            2-8a(28).  [NOTE: The paragraph cited in the applicant's application [paragraph 2-8a(29)] relates to USMA service prior to 24 August 1912.]

27.  Department of Defense Financial Management Regulation 7000.14-R (DoD Pay Manual) Volume 7A, subsection 010101 D (4) states “Service as a cadet or midshipman at a military USMA is always creditable service for an enlisted member.  See Table 1-1 to determine whether such service is creditable for commissioned and warrant officers.”  Table 1-1 indicates when a member who was serving as an officer had service as a cadet or midshipman, in any of the military academies after June 25, 1956, and had an enlistment contract or period of obligated service that was not terminated, their service as a cadet is not creditable. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant enlisted on 17 January 1975, had 13 days of inactive service under the DEP and then served on active duty for 1 year, 5 months, and 7 days.  He was being assigned to the USMA as a cadet on 7 July 1976.  

2.  On 29 January 1979, while still attending the USMA, his four year enlisted active duty obligation expired and he was separated from active duty with transfer to the USAR. 

3.  Since the applicant had not yet received a commission, as of the date his obligated enlisted active duty ended, the DD Form 214 was properly completed and issued under the regulations pertaining to enlisted personnel who had attended the USMA but had not been commissioned.  The 29 January 1979 DD Form 214 correctly reflects his service as of that date.

4.  If the applicant had not completed the USMA program or had not accepted a commission, his entire period of attendance at the USMA would count as enlisted active duty and toward retirement purposes.





5.  However, the applicant did continue his attendance at the USMA, was commission based on his attendance at the USMA, and served on active duty as a commissioned officer for over 13 years.  By accepting a commission, his period of service at the USMA is governed by the regulations for commissioned officers not those for enlisted personnel.  As such, the period he attended the USMA is not creditable toward retirement.

6.  Further, there is no regulation that authorizes retroactive active duty credit to former officers who subsequently serve in an enlisted status. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__MJNT_  __JGH __  __DLL___  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.




_      Marla J. N. Troup_____
          CHAIRPERSON


INDEX

CASE ID
AR20060000558
SUFFIX

RECON

DATE BOARDED
20070221
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
Deny
REVIEW AUTHORITY

ISSUES         1.
104
2.
113
3.

4.

5.

6.