RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        18 September 2007
      DOCKET NUMBER:  AR20070002906


      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             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James E. Anderholm            |     |Chairperson          |
|     |Ms. Laverne V. Berry              |     |Member               |
|     |Mr. Ronald D. Gant                |     |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 at the United
States Military Academy (USMA) at West Point be credited as prior service
on his final 31 May 1992 separation document (DD Form 214).

2.  The applicant states, in effect, that the time he served as a cadet at
the USMA was not included as prior service on his retirement DD Form 214.
He claims that based on a law he recently read, this period of time should
be listed as prior service.

3.  The applicant provides his 31 May 1992 DD Form 214 and USMA Appointment
Orders in support of his application.

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 he was admitted to the USMA as a cadet on
27 July 1967 and upon graduation from the USMA, he was commissioned a
second lieutenant in the Regular Army and entered active duty on 9 June
1971.

3.  On 31 May 1992, the applicant was honorably released from active duty,
in the rank of lieutenant colonel, for the purpose of retirement.  The DD
Form 214 he was issued at the time shows, in Item 12 (Record of Service)
that he completed a total of 20 years, 11 months and 23 days of active
military service and that he had no prior active or inactive service.

4.  Volume 7A (Military Pay Policies and Procedures Active Duty and Retired
Pay) of the Department of Defense (DOD) Financial Management Regulation
(FMR) provides statutory provisions for entitlements, deductions, and
collections and establishes DOD policy on the pay and allowances of
military personnel.

5.  Paragraph 0101 provides guidance on service which is creditable and
Paragraph 0101C lists creditable service periods, both active and inactive,
in all components.  It states, in pertinent part, that service as a cadet
or midshipmen at a military academy is always creditable service for an
enlisted member and that the guidance in Table 1-1 should be used to
determine whether such service is creditable for commissioned and warrant
officers.

6.  Table 1-1 of the DOD FMR states, in pertinent part, that when a member
currently serving as an officer has had service as a cadet or midshipman in
any of the military academies and held no concurrent enlisted and/or
Reserve status, then the service is not creditable.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his service as a cadet at the USMA
should be listed on his DD Form 214 as creditable service was carefully
considered.  However, there is insufficient evidence to support this claim.


2.  By law and regulation, service at a military academy for a commissioned
officer is not creditable unless the member held a concurrent enlisted
and/or Reserve status.

3.  The evidence of record fails to show the applicant held a concurrent
enlisted or Reserve status while he was a cadet at the USMA.  Therefore,
his service as a cadet at the USMA is not creditable service and it would
not be appropriate to include it in his final DD Form 214.

4.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JEA  _  __LVB __  __RDG__  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.




                                  ____James E. Anderholm___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070002906                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/09/18                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1992/05/31                              |
|DISCHARGE AUTHORITY     |AR 635-100                              |
|DISCHARGE REASON        |Retirement                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |129.0100                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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