RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  29 April 2008
	DOCKET NUMBER:  AR20070009525 


	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.




Director



Analyst

The following members, a quorum, were present:




Chairperson



Member



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 to give him additional retirement points for the time he was in the Simultaneous Membership Program (SMP) from 13 December 1988 through 12 December 1990 and that he be credited with a satisfactory year for the year before he entered the SMP.

2.  The applicant states that he served in the SMP but he was not given credit for it since SMP time did not count before 1996.  After he came back in the Army in June 2001, he discovered that the time counted.  He was a cadet for 3 years in the U. S. Army Reserve (USAR) because he took a leave of absence one semester (about January 1987 through January 1988) from the Reserve Officers' Training Corps Program (ROTC), but he continued to work for the 100th Division. 

3.  The applicant also states that retirement year ending (RYE) 12 December 1988 shows him as having an unsatisfactory year.  He has proof of participating in their annual training for that time period.  During that year, he attended all unit training assemblies on weekends.  He also attended the Airborne Course in July 1989 and the 6-week Camp All American Course at Fort Bragg, NC in July 1990.

4.  The applicant also states that he was informed in April 1989 there was a new system in place for tracking retirement years and that there probably were errors. That explains why he received the unsatisfactory years that he did.

5.  The applicant provides an Air Force Service History (i.e., a retirement points history statement); one page from his 13 December 1985 enlistment contract; a letter of appreciation, dated 18 September 1988; a memorandum, dated 6 April 1989; a letter of acceptance, dated 4 January 1989; an Airborne Course diploma; a certificate of completion, dated 15 July 1990; a certificate of training, dated     31 December 1991; ROTC discharge orders; discharge orders, dated 10 June 1992; a DA Form 71 (Oath of Office – Military Personnel); his leave and earnings statements (LESs) for the period December 1987 through December 1990; and an affidavit from a former fellow unit member.

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 enlisted in the Army National Guard (ARNG) on 13 December 1985.

3.  The applicant provided a letter of appreciation, dated 18 September 1988, showing he was commended for an outstanding job during Annual Training 1988.

4.  The applicant provided a memorandum, dated 4 January 1989, showing he was found acceptable for enlistment, as a Specialist Four, E-4, in the SMP effective 4 January 1989.  A DA Form 4824 (Simultaneous Membership Agreement) is not available.

5.  The applicant provided a memorandum, dated 6 April 1989, from the New Jersey ARNG.  This memorandum informed him that he would find a computer printout of his retirement points; however, due to the newness of the system there were probably errors.  It was his responsibility to provide documentation of proof of service to correct any errors.

6.  The applicant provided an Air Force Service History that shows he earned   15 retirement points (membership points only) in RYE 12 December 1988. 

7.  The applicant’s LESs show he earned 48 inactive duty training (IDT) points and 15 active duty points (“Tng Pd 880813 – 880827”) in RYE 12 December 1988.  They also show his Federal income year to date increased from $1,420.40 in July 1988 to $1,858.70 in August 1988. 

8.  The applicant provided a diploma to show he completed airborne training (a   3-week course) in July 1989.  

9.  The applicant’s Air Force Service History shows he earned 15 retirement points (membership points only) in RYE 12 December 1989.

10.  The applicant’s LESs show he earned 28 IDT points in RYE 12 December 1989.  His LESs for the months of December 1989 and January 1990 show he was due an anniversary enlistment bonus on 12 December 1989.  His LES for the month of February 1990 shows he was paid his anniversary enlistment bonus.

11.  The applicant’s Air Force Service History shows he earned 27 retirement points (12 IDT and 15 membership points) in RYE 12 December 1990.

12.  The applicant’s LESs show he earned 12 IDT points in RYE 12 December 1990.  They also show his Federal income year to date increased from $787.68 in May 1990 to $1,549.14 in June 1990.  His LES for the month of June 1990 also contains the entries, “TNG PD” and “NO DRILL PERFORMANCE.”

13.  The basic pay of an E-4 over 4 years of service for pay effective 1 January 1990 was $1,078.80, or $35.96 per day.  

14.  Effective 29 May 1992, the applicant was discharged from the USAR Control Group (ROTC) to accept a commission, and he was discharged from the ARNG and from the USAR in his enlisted status on this date.

15.  The applicant provided an affidavit from a former fellow unit member.  He attests that he and the applicant were in the same unit for 5 years.  He personally worked with the applicant and saw him at Fort Dix, NJ and the New Jersey National Guard Armories at Red Bank and Freehold, NJ, and also during annual training at Fort Drum NY.  He personally drove to drills with the applicant during the period 13 December 1985 to 12 December 1988.  The applicant also attended monthly drills during the period 13 December 1988 to 12 December 1990.  He was the senior medic in the company and was the applicant’s immediate supervisor.

16.  The applicant is currently serving in the U. S. Air Force Reserve.

17.  The ROTC/SMP is a voluntary officer training program designed to increase the number of ROTC officers available for Reserve Forces Duty.  Subject to limitations, it permits an ROTC cadet to train in the ROTC Advanced Course while simultaneously participating as an officer-trainee in paid training assemblies with a U. S. Army Reserve troop program unit.  To be eligible for ROTC/SMP participation, a cadet must be enrolled in the ROTC Advanced Course nonscholarship program; be assigned to a verified officer-trainee position in a TPU; meet the Army body composition/weight control standards; and agree to volunteer for commissioning under the provisions of the ROTC Early Commissioning Program on successful completion of the ROTC Advanced Course.

18.  Army Regulation 135-91 (Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures), paragraph 3-11 at the time stated that USAR enlisted Soldiers enrolled in either the ROTC advanced course or scholarship program were not authorized to participate in any form of Ready Reserve training.  As an exception to this policy, enlisted Soldiers participating in the SMP were authorized to participate in a TPU.  The Soldier could elect to remain assigned to the unit with the understanding that satisfactory participation with the unit in scheduled drills and annual training was required.  Paragraph 3-1 stated that satisfactory was defined as attending all scheduled drills unless excused by the unit commander or granted a leave of absence.  

19.  Army Regulation 140-185 (Training and Retirement Point Credits and Unit Level Strength Accounting Records) states only Ready Reserve Soldiers (other than ROTC and Delayed Entry Control Group Soldiers) and Active Standby Reserve are authorized retirement point credit.  As an exception to the above exclusion of ROTC service, potential participants in the ROTC/SMP are authorized retirement points credit and to be paid for drills in the grade and years of service attained.  

20.  National Guard Regulation 600-100 (Commissioned Officers – Federal Recognition and Related Personnel Actions) states that an SMP participant will be assigned as an officer trainee in a unit based on current or projected commissioned officer vacancies.  Officer trainees are required to attend ARNG annual training and ROTC advanced camp.  When a weekend drill is missed, the commander has the option to grant a split unit training assembly.

21.  Army Regulation 135-7 (Army National Guard and Army Reserve Incentive Programs) states that one-half of a Selected Reserve Incentive Program Enlistment Bonus is payable when the Soldier is military occupational specialty qualified.  The remainder consists of two equal increments of one-fourth of the total bonus amount made on satisfactory completion of the second and the fourth year of the enlistment term of service.

22.  On 10 April 2008, the Air Force Board for Correction of Military Records informed the Board analyst that they could not correct the applicant’s Air Force Service History based upon his LESs.  They could only correct it if the Army records were corrected to show he had additional retirement points.

23.  The New Jersey ARNG provided an ARNG Current Annual Statement, dated 30 June 1992, that shows the applicant earned 15 retirement points (membership points only) in RYEs 12 December 1988 and 12 December 1989 and                27 retirement points (12 IDT points and 15 membership points) in RYE              12 December 1990.

24.  In the processing of this case, an advisory opinion was obtained from the Personnel Division, National Guard Bureau.  That office recommended, in effect, that the applicant be awarded 238 retirement points for RYE 12 December 1988 and service credit for RYEs 12 December 1989 and 12 December 1990. 

25.  A copy of the advisory opinion was provided to the applicant for comment.  He concurred with the advisory opinion.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant enlisted in the ARNG on 13 December 1985.  

2.  The applicant’s Air Force Service History and his available ARNG Current Annual Statement show that in RYE 12 December 1988 he earned only            15 membership points. 

3.  The applicant’s LESs show he earned 48 IDT points and 15 active duty points in RYE 12 December 1988.  Therefore, his ARNG Current Annual Statement should be corrected to show he earned 48 IDT points, 15 membership points, and 15 active duty points in RYE 12 December 1988, for a total of 78 retirement points.

4.  The applicant was accepted into the SMP effective 4 January 1989.  In accordance with the governing regulation as a requirement for acceptance into the SMP, satisfactory participation with the unit in scheduled drills and annual training was required.  It is understood that “satisfactory participation” does not necessarily mean earning 50 retirement points per RYE, only that participation is not “unsatisfactory.”

5.  The applicant’s Air Force Service History and his available ARNG Current Annual Statement show that in RYE 12 December 1989 he earned only               15 membership points.  

6.  The applicant’s LESs show he earned 28 IDT points during RYE                   12 December 1988.  Together with his 15 membership points, he should have been granted a total of 43 retirement points.

7.  The applicant provided a certificate to show he attended airborne training in July 1989; however, it cannot be determined if his unit sent him to the course in an active duty status or if he attended the training as part of his ROTC training.  Therefore, the certificate alone is insufficient evidence to show he should be granted active duty points for attendance at airborne training.

8.  Nevertheless, the applicant was paid his anniversary enlistment bonus in February 1990 (his anniversary being in December 1989).  In accordance with the governing regulation, he would not have been paid that bonus increment unless he had satisfactorily completed his fourth year of his enlistment term of service.  He did provide an affidavit from his former supervisor attesting that the applicant attended monthly drills.  In addition, it is possible that the payment he received in June 1990 was a delayed payment for attendance at the 3-week Airborne Course.  At this time, therefore, it is reasonable to presume that he earned 50 retirement points to earn a satisfactory year in RYE 12 December 1989, any reasonable doubt being resolved in his favor.  It would be equitable    at this point in time to show he earned an additional 7 IDT points and to correct his ARNG Current Annual Statement to show he earned 35 IDT points and       15 membership points, for a total of 50 retirement points in RYE 12 December 1989.

9.  The applicant’s Air Force Service History and his available ARNG Current Annual Statement show that in RYE 12 December 1990 he earned 12 IDT points and 15 membership points, for a total of 27 retirement points.  His LESs also shows he earned 12 IDT points.

10.  The applicant contended that he attended the 6-week Camp All American course at Fort Bragg, NC in July 1990, and he implies that this camp was attended while in an active duty status.

11.  The applicant’s LESs do not verify that he performed 6 weeks of active duty in the summer of 1990.  However, his LESs for this RYE contains an anomaly that leads to the presumption that he did perform some active duty.  His LESs show that his Federal income year to date increased from $787.68 in May 1990 to $1,549.14 in June 1990.  His LES for the month of June 1990 also contains the entries, “TNG PD” and NO DRILL PERFORMANCE.”  With his basic pay being $1,078.80, or $35.96 per day, and an increase in pay of $761.46 from May 1990 to June 1990 (and with an entry of “TNG PD” on his June 1990 LES), it appears reasonable to presume that the applicant performed 21 days of active duty during the month of June 1990.  Any reasonable doubt should be resolved in the applicant’s favor, and his ARNG Current Annual Statement should be corrected to show he earned 12 IDT points, 15 membership points, and 21 active duty points, for a total of 48 retirement points in RYE 12 December 1990.

12.  It is acknowledged that the applicant’s former supervisor provided an affidavit attesting that the applicant attended monthly drills.  However, in this case there are simply too many LESs showing no drill performance in RYE       12 December 1990.  It is not reasonable to believe that the applicant, with
5 years experience and soon hoping to become an officer, would let this error go 
so long without being paid.  At this time there is insufficient evidence to show the applicant earned 50 retirement points, or a qualifying year, in RYE 12 December 1990.

13.  Once the applicant’s ARNG Current Annual Statement is corrected, the Air Force should be able to update his Air Force Service History.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__XXX ___  __XXX__  __XXX _  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by correcting his Army National Guard Current Annual Statement to show:

     a.  he earned 48 IDT points, 15 membership points, and 15 active duty points in RYE 12 December 1988, for a total of 78 retirement points;

     b.  he earned 35 IDT points and 15 membership points in RYE 12 December 1989, for a total of 50 retirement points; and

     c.  he earned 12 IDT points, 15 membership points, and 21 active duty points in RYE 12 December 1990, for a total of 48 retirement points.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to showing he completed a qualifying year of service for retired pay in RYE 12 December 1990.




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          		CHAIRPERSON