RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  13 March 2008
	DOCKET NUMBER:  AR20070001925 


	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. Jeanne Marie Rowan

Analyst

The following members, a quorum, were present:


Mr. Mark D. Manning

Chairperson

Mr. Jeffrey C. Redmann

Member

Mr. Rowland C. Heflin

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 DA Form 3713 (Data for Retired Pay), dated 10 June 1993, be corrected to show 4 years of constructive service credit for completing dental school prior to entering active duty.

2.  The applicant states, in effect, that he was deferred from the draft in 1951 because he was in dental school.  He completed dental school then entered active duty service in the U. S. Air Force (USAF), the Army Reserve (USAR), and then the Army National Guard (ARNG).  He further states, in effect, that while he was serving on active duty, in the USAR, and in the ARNG he received basic pay with the 4-year constructive service credit rate.  He states, in effect, that he has been trying to correct his retirement pay record since 1991. 

3.  The applicant provides copies of the following documents in support of his application:

     a.  DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with a separation effective date of 1 September 1966;

     b.  DD Form 215 (Correction to DD Form 214) dated 14 September 1993;

     c.  NGB Form 22 (Report of Separation and Record of Service) with a separation effective date of 30 November 1991;

     d.  NGB Form 22A (Correction of NGB Form 22) dated 21 September 1993;

     e.  DA Form 71 (Appointment as a Commissioned Officer);

     f.  DA Form 3686 (Leave and Earnings Statement) which shows 28 years of service for basic pay, dated 20 August 1991; and 

     g.  DA Form 1506 (Statement of Service for Computation of Length of Service for Pay Purposes) dated 22 October 1982.

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's record shows that he is a graduate of The Ohio State University and that he earned his Doctor of Dental Surgery on 8 June 1956.

3.  On 28 July 1956, the applicant entered active duty in the U. S. Air Force in the rank and grade of first lieutenant/pay grade 02.  He served until 1 September 1966 when he was honorably discharged.  The DD Form 214 he was issued on that date shows that his highest level of civilian education attained was 7 years of college and that his major course of study was dentistry.  Item 24 (Statement of Service) shows the following entries:

     a.  24a(1) (Net Service This Period) 10 years, 1 month, and 4 days; 

     b.  24a(2) (Other Service) 1 month and 20 days; and 

     c.  24a(3) (Total Service) 10 years, 2 months, and 24 days.  

4.  Records show the applicant had a break in service from 2 September 1966 to 15 November 1977.  

5.  He was appointed a Reserve commissioned officer of the Army on 16 November 1977.  Headquarters, 5th Army issued an appointment letter, which stated that the applicant was credited with "24 years, 16 months, and 27 days of service in an active status."  The appointment letter further stated that the computation of service in an active status was for medical personnel and that, this service was not valid for his  basic pay entry date and that it was not the result of prior military service.

6.  Records show the applicant served in USAR in Troop Program Units (TPUs) from 16 November 1977 to 15 November 1986.  

7.  On 22 October 1982, the applicant signed in his own hand DA Form 1506, which shows that in accordance with the Department of Defense Pay Manual, paragraph 10102, he is authorized 4 years constructive service credit to his pay entry base date (PEBD) due to credit for completion of dental school prior to entering active duty. 
8.  This form shows that his constructive service credit was from 1952 to 1956.  This form also shows that he served in the USAF Reserve from 8 June 1956 to 27 July 1956 and then he served in the USAF active component from 28 July 1956 to 1 September 1966.  This form further shows that he served in the USAR from "16 November 1977 to present."  Records show an appropriate approval authority did not authenticate this form.

9.  He accepted an appointment in the ARNG of the State of Ohio on 2 October 1987 and served honorably until he was transferred to the USAR Control Group (Retired Reserve) on 30 November 1991.  The NGB Form 22 he was issued on this separation date shows the following entries in Item 10 (Record of Service):

     a.  10a (Net Service this Period) 4 years, 1 month, 29 days;

     b.  10b (Prior Reserve Component Service) 10 years, 6 days; 

     c.  10c (Prior Active Federal Service) 10 years, 1 month, 14 days; and

     d.  10d (Total Service for Pay) 24 years, 3 months, and 9 days.  

10.  Records show that on 29 August 1991, the Chief of Retirement Services authenticated DA Form 3713, which shows in Item 29 (Basic Pay) the entry 24 years, 3 months, and 2 days.  This form further shows that the applicant was placed on the retired list on 24 November 1991 in the rank and grade of colonel/pay grade 0-6, per Permanent Order Number P-08-006201, dated 29 August 1981. 

11.  On 10 June 1993, the Chief of Retirement Services prepared and authenticated a second DA Form 3713, which corrected items 22 (Voluntary Retirement), Item 24 (Years of Service for Percentage Purposes) and Item 29 (Basic Pay) on the original DA Form 3713 completed on 29 August 1991.  Item 29 was corrected to show the entry 24 years, 3 months, and 11 days.  In the remarks section of this form, it is noted that the applicant's service data was recomputed because his points were not verified when he was placed on the Retired List on 24 November 1991. 

12.  On 14 September 1993, the U. S. Air Force issued a DD Form 215, which corrected his DD Form 214, with a separation effective date of 1 September 1966, to show the entries as follows: 

     a.  24a(2) (Other Service) 4 years, 1 month, and 20 days; and 

     b.  24a(3) (Total Service) 14 years, 2 months, and 24 days.  

13.  On 21 September 1993, the ARNG of the State of Ohio issued NGB Form 22A which corrected the applicant's NGB Form 22, dated 30 November 1991.  The specific items corrected were as follows:

     a.  10(b) (Prior Reserve Component Service) 14 years, 0 months, 6 days; and

     b. 10(d) (Total Service for Pay) 28 years, 3 months, and 9 days.

14.  In 1980 Defense Officer Personnel Management Act (DOPMA) was enacted and went into effect on 15 September 1981.  DOPMA revamped the officer personnel system.  An apparent unintended consequence of DOPMA affected medical students:  the 4 years of credit for longevity pay purposes previously received for the 4 years in medical school was lost.  Following DOPMA enactment, new medical officers entering the service directly from medical school were appointed as Captains with zero years’ longevity.

15.  Title 10 USC §12207 states for the purpose of determining the grade and the rank within grade of a person receiving an original appointment as a Reserve commissioned officer to an officer category in which advanced education or training is required and who has advanced education or training, shall be credited with constructive service for such education, training, or experience.  Credit received shall be equal to the number of years of advanced education required by a majority of institutions that award degrees in that professional field for completion of the advanced education or award of the advanced degree—four years for medical school.  It further states that constructive service credited an officer shall be used only for determining the officer’s initial grade as a Reserve officer; rank in grade; and service in grade for promotion eligibility.  However, in the years before the implementation of DOPMA, such credit was also counted towards longevity for retired pay purposes.

16.  In the processing of this case, an advisory opinion, dated 28 January 2008, was provided by the Chief, Transition and Separations Branch, United States Army Human Resources Command (HRC)-St. Louis.  A copy of that opinion was provided to the applicant for his review and to allow him to an opportunity to submit comments or a rebuttal statement.

17.  HRC-St. Louis stated, in effect, that Constructive Service Credit can be given in accordance with the DODI (Department of Defense Instruction) Section 6.1.2 and 6.1.2.2.1, which states Constructive Service Credit is given to a person who begins his commissioned service after graduation.  HRC-St. Louis could not verify if the applicant was commissioned in the USAF after graduation from dental school.   

18.  The applicant replied to the above advisory opinion on 31 January 2008.  In his reply, he stated in effect, that in 1951 he was drafted into the United States Services, but he was deferred due to entering dental school in September 1952. He had yearly deferments until he graduated and was commissioned in the USAF Reserve on 8 June 1956.  He entered active duty in August 1956 and reported to Gunter Air Force Base.  He stated his initial DD Form 214 issued when he left active duty did not include the 4 years constructive service credit, but it was amended by DD Form 215.  He further stated that the NBG Form 22A amended his initial NGB Form 22 to include the 4 years of dental school prior to his commissioning date.  The applicant stated that his personal copies of his USAF commissioning document were destroyed by a flood. 

19.  The applicant provided additional supporting documents with his reply, dated 31 January 2008, which show that he was a senior dental student at Ohio State University and was expected to receive his Degree of Doctor of Dental Surgery on 8 June 1956.  The Dean of the College of Dentistry at the Ohio State University signed the letter on 14 December 1955.  The applicant also attached an unauthenticated DA Form 1056, which shows that on 22 October 1982 he was given "four years credit for pay entry basic date purposes due to credit for dental school" in accordance with the DODI Pay Manual Paragraph 10102.  The third document the applicant submitted with his reply was an Information Sheet, dated 25 March 1989, which stated in pertinent part, that dental school attendance is credited for both basic pay and for retirement pay for Dental Corps officers commissioned prior to 15 September 1981.

20.  DODPM (Department of Defense Pay and Allowances Entitlement Manual) paragraph 10101 provides that all Service is creditable which, under any law in effect on 10 January 1962, was creditable in computing basic pay.  Paragraph 10102 further provides that medical and dental officers who completed medical or dental training prior to 15 September 1981 received 4 years credit for such training.  

21.  Title 31 U. S. Code, section 3702, also known as the barring statute, prohibits the payment of a claim against the Government unless the claim has been received by the Comptroller General within 6 years after the claim accrues. Among the important public policy considerations behind statutes of limitations, including the 6-year limitation for filing claims contained in this section of Title 31, U. S. Code, is relieving the government of the need to retain, access, and review old records for the purpose of settling stale claims, which are often difficult to prove or disprove.

22.  On 17 October 1998, the National Defense Authorization Act for Fiscal Year 1999 (NDAA FY 99) became law.  Section 545(c) required the Department of Defense (DoD) to submit a report to Congress concerning the 6-year statute of limitations contained in Title 31, U. S. Code, section 3702(b), commonly referred to as the barring act.  The Secretary of Defense was to make a recommendation whether it was appropriate for the Secretaries of the military departments to have authority to waive that limitation in selected cases involving implementation of decisions of the Secretary of a military department under chapter 79 (Correction of Military Records) of Title 10, U. S. Code.  In its report, DoD did not recommend that the Secretaries of the military departments have specific statutory authority to waive the 6-year limitation in Title 31, U. S. Code, section 3702 in such cases. DoD noted that there presently exists in current law substantial authority to counteract the effects of the statute of limitations in the context of military records corrections.  DoD also noted that Title 10, U. S. Code, section 1552(g), which was amended in 1998 to expand the definition of “military record,” now provides discretionary authority to change records to show a valid submission of a claim by a member or beneficiary within the period prior to expiration of the statute of limitations.  Therefore, section 1552 already contains the authority necessary to take action that will, in effect, waive the 6-year limitation in a wide spectrum of cases.

DISCUSSION AND CONCLUSIONS:

1.  The applicant applied for retirement pay on 29 August 1991.  At that time, the Retirement Services Officer certified that the applicant had 24 years, 3 months, and 11 days of service computation for basic pay and that he had 24 years, 2 months, and 24 days service credit for voluntary retirement.  

2.  Based on the evidence of record, the applicant's initial USAF DD Form 214 was corrected by DD Form 215 to show that he had 14 years, 2 months, and 24 days of creditable service for basic pay purposes on 14 September 1993 vice 10 years, 2 months, and 24 days.  The ARNG corrected his NGB Form 22 with NGB Form 22A to show that he had 14 years and 6 days of prior reserve component service and that his total service for pay was 28 years, 3 months, and 9 days vice 24 years, 3 months, and 9 days.  

3.  Based on the evidence of record, which shows that the USAF and the ARNG corrected the applicant's record to show 4 years of constructive service credit for longevity pay purposes for the applicant's 4 years of dental school and is further supported by the fact that the applicant was commissioned prior to 1962, it would be fair and equitable to correct the applicant's DA Form 3713 to show his four years of creditable service due to completion of dental school.

4.  When the applicant retired on 29 November 1991, his USAF and ARNG separation documents had not been corrected to show the 4 years constructive service credit for longevity pay purposes based on completion of dental school in 1956.  In 1993, both these agencies corrected his separation documents to include constructive service credit for dental school.  Therefore, it would be fair and equitable to correct his DA Form 3173 to show 4 years of constructive service credit for longevity pay purpose for dental school completion and to pay him all back pay and allowances allowed by law.

BOARD VOTE:

__MDM__  __JCR__  __RCH__  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.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending DA Form 3713 (Data for Retired Pay) dated 10 June 1993 by: 

     a.  Crediting him with 4 years of constructive service credit for longevity pay purposes for his 4 years of dental school; and  

     b.  Paying to him from the date of his retirement the difference in retired pay for 28 years, 2 months, and 11 days vice 24 years, 2 months, and 11 days. 




___Mark D. Manning__
      CHAIRPERSON


INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.