RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  16 August 2007
	DOCKET NUMBER:  AR20060015319 


	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. Wanda L. Waller

Analyst

The following members, a quorum, were present:


Mr. William Blakely

Chairperson

Mr. William Powers

Member

Mr. Donald 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 date of initial entry to military service (DIEMS) be changed to 27 August 1979.

2.  The applicant states, in effect, that his DIEMS date is incorrect because it is the date he was commissioned from the University of Alabama and not the date he entered the University of Alabama Army Reserve Officers’ Training Corps (ROTC) program under contract with a four year Army ROTC scholarship.  He contends that after reading about DIEMS he discovered that Soldiers who received four year Army ROTC scholarships had DIEMS dates that started the date they entered school.  He indicates that he tried to get his scholarship contract; however, his attempts were unsuccessful.     

3.  The applicant provides a copy of a DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 9 December 2002; a DD Form 214 for the period ending 31 March 1996; an Army ROTC Scholarship Award certificate, dated 1 March 1979; numerous records from the University of Alabama; a diploma; and orders, dated 6 July 1984. 

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant was born on 16 March 1961.  His ROTC scholarship contract is not available.  He was commissioned a second lieutenant on 14 May 1983 after graduating from the University of Alabama ROTC program.  He was placed in the Retired Reserve on 5 August 2005. 

3.  In support of his claim, the applicant provided an award certificate which shows he was awarded a four year ROTC scholarship on 1 March 1979.  He also provided financial records from the University of Alabama which show he attended the University beginning in the 1979 Fall semester through the 1983 Spring semester and his tuition was paid for by an Army ROTC scholarship.  

4.  In the processing of this case, a staff advisory opinion was obtained from the 81st Regional Support Team, U.S. Army Human Resources Command, St. Louis, Missouri.  That office states that based on the Army ROTC scholarship certificate awarded to the applicant on 1 March 1979 it would seem reasonable to believe that he entered the ROTC program sometime during that year.  The student accounts financial records substantiate the attendance of the applicant from the year 1979 through the year 1983.  However, without the signed enlistment contract an exact date of entry cannot be determined thus prohibiting administrative correction to his DIEMS date.

5.  On 18 April 2007, a copy of the advisory opinion was forwarded to the applicant for comment and possible rebuttal.  On 2 May 2007, the applicant requested a 60 day extension to gather additional evidence in support of his rebuttal to the advisory opinion.  He was given a suspense date of 17 July 2007.  

6.  On 12 July 2007, the applicant responded.  In summary, he stated that his request was rejected based on the fact that, although he could prove that he was offered a four year Army ROTC scholarship in 1979, that he subsequently attended the University of Alabama and attended Army ROTC classes in consecutive semesters, finally graduating in the Spring semester of 1983 as a distinguished military graduate and although he could prove that the University of Alabama was paid by the U.S. Army for his tuition and educational expenses during those four years, he could not definitively prove that he had ever accepted an Army ROTC scholarship without a signed copy of enlistment contract.  He pointed out that on several occasions he requested that the Federal Government provide his enlistment contract to him and they refused to do so.  He stated that the Army ROTC department at the University of Alabama stated that all Army ROTC records would have been destroyed three years after he graduated in 1983.  He also provided eight notarized statements in support of his claim.

7.  Title 10, U. S. Code, section 1406 states that the retired pay base of any person entitled to retired pay under section 3911 (retirement of a commissioned officer for length of service) who first became a member of a uniformed service before 8 September 1980 is computed based upon the monthly basic pay of the member's retired grade.

8.  Title 10, U. S. Code, section 1407(a) states that the retired pay of any person entitled to that pay who first became a member of a uniformed service after 
7 September 1980 is computed using the retired pay base determined under this section.  Subsection 1407(b) states that, except as provided for in subsection 1407(f) (pertaining to certain enlisted members), the retired pay base of a person under this section is the person's high-three average determined under subsection (c) (Regular service) or (d) (non-Regular service) (also known as High-3). 

9.  Title 10, U. S. Code, subsection 1407(c) states that the general rule is the high-three average of a member entitled to retired pay under any provision of law other than sections 1204 (members on active duty for 30 days or less or on inactive-duty training: retirement), 1206 (members on active duty for 30 day or less or on inactive-duty training: separation), or 12731 (non-Regular retirement) of this title is the amount equal to:

     (A) the total amount of monthly basic pay to which the member was entitled for the 36 months (whether or not consecutive) out of all the months of active service of the member for which the monthly basic pay to which the member was entitled was the highest, divided by

     (B)  36.

10.  The U. S. Army Human Resources Command Military Personnel Message Number 03-103, Subject:  DIEMS Date Accuracy, stated that the DIEMS is the date an individual was initially enlisted, inducted, or appointed in a Regular or Reserve Component of a uniformed service as a commissioned officer, warrant officer, or enlisted member.  The DIEMS date for a ROTC cadet is the date they signed their ROTC scholarship contract.  This date is used solely to indicate which retirement plan a member is under.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's ROTC scholarship contract is not available; however, as he was appointed a commissioned officer on 14 May 1983 after graduating from the University of Alabama ROTC program with a 4-year scholarship it stands to reason that he entered the University of Alabama sometime around August 1979. 

2.  The ROTC scholarship award certificate and the financial records from the University of Alabama which show the applicant’s tuition for the period 1979 to 1983 was paid for by an Army ROTC scholarship are accepted as sufficient evidence on which to amend his DIEMS.  The applicant states he entered the University of Alabama on 27 August 1979.  The exact date is not an issue as long as the DIEMS date is prior to 8 September 1980.  Therefore, his records should be corrected to show his DIEMS as 27 August 1979 and upon turning age 60, his retired pay should be computed based upon the monthly basic pay of his retired grade and not on his High-3.
BOARD VOTE:

WB____  ___WP__  __DL____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief and to excuse failure to timely file.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing his DIEMS as 27 August 1979.



___William Blakely________
          CHAIRPERSON




INDEX

CASE ID
AR20060015319
SUFFIX

RECON

DATE BOARDED
20070816
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
GRANT
REVIEW AUTHORITY

ISSUES         1.
100.0000
2.

3.

4.

5.

6.