IN THE CASE OF:
BOARD DATE: 29 January 2009
DOCKET NUMBER: AR20080010196
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, correction of his basic pay entry date (BPED) to include his 223 days of active duty in the U.S. Navy.
2. The applicant states that all of his U.S. Army longevity pay raises for over 48 years were delayed by 223 days. As a result, he was underpaid thousands of dollars.
3. The applicant provides a letter from the U.S. Naval Academy, dated 7 May 2007; his AHRC [Army Human Resources Command] Form 606-E (Statement of Service with Retirement Points); his DD Form 214 (Certificate of Release or Discharge from Active Duty); his retirement Orders S28-19, dated 9 February 1984; and a supplemental letter, dated 23 October 2008.
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 applicants 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 applicants 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 DA Form 66 (Officer Qualification Record) shows he served as a midshipman in the U.S. Navy from 1 July 1957 through 8 February 1958.
3. After a break in service, the applicant was appointed as a second lieutenant on 5 June 1960 in the Regular Army. He was promoted to the rank of colonel on 1 September 1980.
4. His Officer Record Brief, dated June 1984, shows his pay entry basic date as 5 June 1960.
5. The applicant was released from active duty on 30 June 1984 after completing 24 years and 26 days of total active military service. He was placed on the retired list on the date following in the retired grade of colonel. His DD Form 214 does not show any prior active or inactive service.
6. In a 7 May 2007 letter, the U.S. Naval Academy certified that the applicant attended the U.S. Naval Academy on continuous active duty in the U.S. Navy as a midshipman from 1 July 1957 until 8 February 1958. The letter indicated the applicant received pay and allowances as authorized for an active duty member of the Navy under Title 37, United States Code (USC 201 (c)).
7. His Statement of Service with Retirement Points shows he served on active duty in the U.S. Navy from 1 July 1957 through 8 February 1958.
8. The Department of Defense Financial Management Regulation (DODFMR), volume 7B, Chapter 1, paragraph 0101 prescribes service creditable for pay purposes. It states that 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 been appointed after 25 June 1956 and held no concurrent enlisted and/or Reserve status or had enlistment contract or period obligated service that was not terminated, then the period involved was not creditable.
9. Title 10, United States Code, Section 971b(2) states, in computing length of service for any purpose, service as a cadet or midshipman may not be credited to commissioned officer of the Army or Air Force.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that all of his U.S. Army longevity pay raises for over 48 years were delayed by 223 days and he was underpaid thousands of dollars.
2. The evidence of record shows the applicant served as a midshipman at the U.S. Naval Academy from 1 July 1957 through 8 February 1958. After a break in service, he was appointed as a commissioned officer on 5 June 1960 in the Regular Army.
3. However, there is no evidence of record which shows the applicant held concurrent enlisted status. Therefore, his service as a midshipman is not creditable towards active duty service and there is no basis for correcting his BPED to include his 223 days of active duty service in the U.S. Navy.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
___x_____ _____x___ ____x____ 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.
_________xxx_____________
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) AR20080010196
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ABCMR Record of Proceedings (cont) AR20080010196
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