IN THE CASE OF:	  

	BOARD DATE:	  10 July 2008

	DOCKET NUMBER:  AR20080009708 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, reconsideration of his earlier request to recompute his service for retired pay.

2.  The applicant states that the Defense Finance and Accounting Service (DFAS) is paying him for only 23 years, 1 month, and 12 days of service, whereas the U. S. Army Human Resources Command (USAHRC) has awarded him 25 years, 11 months, and 2 days of service 

3.  USAHRC – St. Louis later corrected the applicant’s Chronological Statement of Retirement Points to show he completed 26 years, 4 months, and 12 days of qualifying service for a Reserve retirement.

4.  The applicant provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070018454 on 12 June 2008.

2.  The applicant provides new argument that will be considered by the Board.


3.  On 20 June 1973, the applicant enlisted in the U. S. Naval Reserve and served, not on active duty, for 1 month and 23 days, through 12 August 1973.  On 13 August 1973, he entered active duty to attend the Special Naval Academy Preparatory School and served on active duty through 7 July 1974 (10 months and 25 days of creditable active service).

4.  On 8 July 1974, the applicant entered the U. S. Naval Academy as a midshipman.  On 8 April 1976, he was discharged from his status as a midshipman without graduating and was returned to the U. S. Naval Reserve in his enlisted status.  He received a DD Form 214 (Report of Separation from Active Duty) covering the period of time he attended the Academy (1 year,          9 months, and 1 day of creditable active service).

5.  The applicant served in an enlisted status in the U. S. Naval Reserve from      9 April 1976 through 13 November 1977, when he was honorably discharged.  During this period of 1 year, 7 months, and 5 days, he earned a total of           105 retirement points creditable for a Reserve retirement (13 of those points were active duty points).  (During one of those retirement years, he had actually earned 90 inactive duty retirement points; however, at the time the law stated that only a maximum of 60 inactive duty points could be credited in one retirement year.)

6.  The applicant attended the U. S. Army Reserve Officers’ Training Corps (ROTC) program from 14 November 1977 through 16 August 1979 (for a period of 1 year, 9 months, and 3 days).  There is no evidence to show he held a concurrent Reserve status at any time while attending ROTC.

7.  The applicant was appointed a second lieutenant out of ROTC on 17 August 1979 and served, not on active duty, for 1 month and 11 days.  

8.  The applicant entered active duty on 28 September 1979.  

9.  The applicant’s retirement orders, dated 13 March 2001, showed he completed 21 years, 10 months, and 4 days of creditable service for a voluntary retirement; 22 years, 12 (sic) months, and 8 days of creditable section 1405 service; and 28 years, 10 months, and 9 days of creditable service for pay. 

10.  The applicant’s retirement orders were amended on 31 May 2001 to show he completed 22 years, 9 months, and 19 days of creditable service for a voluntary retirement; 23 years, 1 month, and 12 days of creditable section     1405 service; and 24 years, 7 months, and 7 days of creditable service for pay.


11.  The applicant was released from active duty on 31 July 2001 for the purpose of retirement.  His DD Form 214 for the period ending 31 July 2001 shows he completed 21 years, 10 months, and 3 days of creditable active service for that period and 11 months and 16 days of prior active service.  

12.  Records at DFAS credit the applicant with 26 years, 10 months, and 9 days of creditable service for pay; 23 years, 1 month, and 12 days of 1405 service (service percentage multiplier); and 21 years, 10 months, and 4 days of service for voluntary retirement.

13.  Army Regulation 600-8-24 (Officer Transfers and Discharges) states, in pertinent part, that voluntary retirement eligibility is determined by active Federal service as computed according to the applicable provisions of Federal law for the various types of retirements.

14.  Title 10, U. S. Code, section 971(a) states that the period of service under an enlistment or period of obligated service while also performing service as a cadet may not be counted in computing, for any purpose, the length of service of an officer of an armed force.  Section 971(b) states that in computing length of service for any purpose, service as a cadet or midshipman may not be credited to any commissioned officer of the Army.

15.  Army Regulation 635-200 (Enlisted Active Duty Administrative Separations) states service as a cadet at the U. S. Military Academy, at the U. S Air Force Academy, and as a midshipman at the U. S. Coast Guard Academy is creditable for retirement.  The current regulation erroneously omits to mention service as a midshipman at the U. S. Naval Academy; however, prior versions of the regulation do list this service as creditable for an enlisted retirement.

16.  The Department of Defense Financial Management Regulation (DODFMR), volume 7B, chapter 1, paragraph 0101 prescribes service creditable for pay purposes.  It states service as a cadet at a military service academy is always creditable service for an enlisted member.  Table 1-1 must be used to determine whether such service is creditable for commissioned and warrant officers.  Table 1-1 states that when a member currently serving as an officer has had service as a cadet in any of the military academies to which he was appointed after 25 June 1956 and he held no concurrent enlisted and/or Reserve status or had an enlistment contract or period of obligated service that was not terminated, then the period involved was not creditable.


17.  The DODFMR, volume 7B, chapter 1, paragraph 010102 states that for commissioned officers, any period of service performed after 12 October 1964 and prior to 1 August 1979 in ROTC, even if such member held a concurrent Reserve status, is not creditable for pay.

18.  Title 10, U. S. Code, section 1402, states the retired pay of a member who first became a member before 8 September 1980 and who has become entitled to retired pay and who thereafter serves on active duty is entitled to recompute his retired pay according to the listed table:

      Take the monthly basic pay of the grade in which he would be eligible to retire if he were retiring upon that release from active duty multiplied by 2 1/2 percent of the sum of the years of service that may be credited to him in computing retired pay (i.e., in accordance with section 1405).

19.  Title 10, U. S. Code, section 1405, states the years of service of the member for the purpose of computing retired pay are computed by adding (1) the member’s years of active service; (2) the years of service, not included in clause (1), with which the member was entitled to be credited on 31 May 1958; and (3) the years of service, not included in clause (1) or (2), with which the member would be entitled to be credited under section 12733 of this title if the member were entitled to retired pay under section 12731 (non-regular retirement) of this Title.

20.  Title 10, U. S. Code, section 12733 states that, for the purpose of computing the retired pay of a person for a non-regular retirement, the person’s years of service and any fractions of such a year are computed by dividing 360 into the sum of the person’s (1) days of active service; (2) full-time service under specified sections of Title 32, U. S. Code; and (3) one day for each retirement point credited (with specified limitations).  Subsection 12733(3)(A) states that not more than 60 inactive duty points in any one year of service before the year of service that includes 23 September 1996 may be credited.

21.  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, participants in the Simultaneous Membership Program (SMP)/ROTC are authorized retirement points credit.  

22.  A USAHRC – St. Louis Chronological Statement of Retirement Points, dated 19 June 2008, shows the applicant completed 25 years, 11 months, and 2 days of qualifying service for a Reserve retirement.  As this Statement of Retirement Points identified all of the applicant’s service as military personnel class “commissioned officer” and failed to identify his U. S. Naval Reserve service after his discharge from the U. S. Naval Academy, the Board analyst requested USAHRC – St. Louis correct the statement to correctly identify his military personnel class and service.

23.  On 23 June 2008, the applicant’s Chronological Statement of Retirement Points was corrected to show he completed 26 years, 4 months, and 12 days of qualifying service for a Reserve retirement.

24.  Both of the applicant’s Chronological Statement of Retirement Points credited him with active duty points for the period he was in the U. S. Naval Academy.

DISCUSSION AND CONCLUSIONS:

1.  The applicant is confusing the service (i.e., 26 years, 4 months, and 12 days as shown on his corrected Chronological Statement of Retirement Points) he would have been credited with had he retired with an enlisted Reserve retirement at age 60 with the service he was eligible to be credited with as a commissioned officer who retired from active duty.

2.  For example, had the applicant retired with an enlisted Reserve retirement or even with an enlisted active duty retirement, all of his service while attending the U. S. Naval Academy would have counted as creditable service towards retirement and towards retired pay.  However, he retired as an active duty commissioned officer, and different rules/laws apply.

3.  It cannot be determined how the period of 11 months and 16 days of prior active service, as reflected on the applicant’s DD Form 214 for the period ending 31 July 2001, was calculated, unless the applicant had additional active duty that is not reflected in the available records.  The available evidence of record shows the applicant served:

	21 10    3   active duty as a commissioned officer
          +    10  25  active duty at the Special Naval Academy Preparatory School
          +          13  active duty while in the U. S. Naval Reserve
         =21  20  41
         =21  21  11 
         =22    9   11  years, months, and days of service for a voluntary retirement

4.  Records at DFAS show the applicant had 21 years, 10 months, and 4 days of service for a voluntary retirement.  
5.  In addition to the applicant’s active duty service, he served creditable inactive duty service as follows:

	22    9   11 
          +       1   23   during his initial U. S. Naval Reserve service
          + 1    7     5   during his post-Academy U. S. Naval Reserve service
          +       1   11   during his U. S. Army Reserve commissioned service
         = 23 18   50
            23 19   20 
         = 24   7   20    years, months, and days of total service for pay

6.  The applicant’s section 1405 service is computed by adding his active service (i.e., 22 years, 9 months, and 11 days) plus one day for each retirement point credited.  He earned a total of 105 retirement points; however, his 13 active duty points have already been counted as active service.  Therefore, he has             92 points, or 3 months and 2 days, of additional service creditable towards section 1405 service:

	22   9  11  total active duty
         +       3    2  retirement points
         =23   0  13  years, months, and days of section 1405 service

7.  The applicant’s multiplier is based upon his section 1405 service.

8.  Both of the applicant’s Chronological Statement of Retirement Points credited him with active duty for the period he was in the U. S. Naval Academy.  However, that appears to be an administrative glitch in the system caused by the fact that at the time he was attending the Academy he also had a dual enlisted status.  As noted in paragraph 1 of DISCUSSION AND CONCLUSIONS, above, had he remained an enlisted Soldier and retired as an enlisted Soldier, that period of service would have counted towards retirement, towards basic pay, and towards retired pay.

9.  However, again, the applicant did not retire as an enlisted Soldier.  He retired from active duty as a commissioned officer.  In accordance with Title 10, U. S. Code, section 971(b), service as a cadet or midshipman may not be credited to any commissioned officer of the Army in computing length of service for any purpose.

10.  Likewise, the applicant’s time in ROTC is not creditable for any purpose, not even for retirement points, since it appears he did not have a concurrent U. S. Army Reserve status.  

11.  Although the above calculations show that the applicant should have been credited with 22 years, 9 months, and 11 days of service for voluntary retirement (rather than the 22 years, 9 months, and 19 days shown on his amended retirement orders or the 21 years, 10 months, and 4 days shown in DFAS records); credited with 23 years and 13 days of section 1405 service (rather than the 23 years, 1 month, and 12 days shown on his amended retirement orders and in DFAS records); and 24 years, 7 months, and 20 days of service for pay (rather than the 24 years, 7 months, and 7 days shown on his amended retirement orders and the 26 years 10 months, and 9 days shown in DFAS records), the Board will not make these corrections to the applicant’s records without his concurrence.  

12.  The applicant requested correction of his records to show, in effect, that his retired pay would be increased.  The above calculations reducing his section 1405 service (which determines retired pay) from 23 years, 1 month, and 12 days to 23 years and 13 days might cause a reduction in his retired pay.  The Board will not make his records worse without his concurrence.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___xx___  ____xx__  __xx____  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 to amend the decision of the ABCMR set forth in Docket Number AR20070018454 dated 12 June 2008.




 _    ______xxxx____________
       CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.


ABCMR Record of Proceedings (cont)                                         AR20080009708





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ABCMR Record of Proceedings (cont)                                         AR20080009708



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