BOARD DATE:	  25 August 2009

		DOCKET NUMBER:  AR20080012936 


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, that his retirement points be adjusted to add points for active duty performed that is not currently reflected on his ARPC Form 606-E (Statement of Service with Retirement Points) and that his date of advancement on the Retired List to the rank of captain (CPT) be adjusted accordingly. 

2.  The applicant states, in effect, his records do not reflect his active duty and active duty for training (ADT) during the period of July 1975 when he performed 14 days of annual training (AT).  Additionally, his records do not reflect the active duty that he performed during the following periods:  the 42 days of ADT he performed from 11 June to 21 July 1976 while attending the Reserve Officers' Training Corps (ROTC) Advanced Summer Camp; the period from 
21 July 1983 to 20 July 1984 which equals 33 days of ADT; the period from 
21 July 1986 to 18 July 1987 which equals 22 days of ADT; and the period from 2 February to 31 October 2002 which equals 273 days of active duty.  He goes on to state that he was serving on active duty at the time of his retirement and he did not receive retirement point credit for the last 273 days of active duty that he performed.  Additionally, he also states that this error will affect the date he is advanced on the Retired List in the rank of CPT.

3.  The applicant provides a four-page letter explaining his application which includes a list of 30 enclosures with 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 was born on 11 August 1949 and enlisted in the Regular Army on 22 December 1971 for a period of 3 years, training as a military policeman (MP) and assignment to Europe.  He completed his training and was transferred to Germany for assignment to an MP company.  He was promoted to the rank of sergeant on 22 June 1974. 

3.  He completed his tour in Germany and on 17 June 1975, he was honorably released from active duty (REFRAD) at Fort Dix, New Jersey.  He was transferred to a United States Army Reserve (USAR) unit in Pennsylvania.

4.  He was discharged from the Ready Reserve and on 8 March 1976, the applicant enlisted in the USAR Control Group (ROTC).  He attended ROTC Advanced Camp at Fort Bragg, North Carolina from 11 June to 21 July 1976.  He was also commissioned as a USAR second lieutenant on 21 July 1976 with a concurrent call to active duty effective 7 January 1977. 

5.  He completed his training and remained on active duty as an infantry officer.  He was promoted to the rank of captain on 7 January 1981.

6.  On 9 June 1983, he was honorably REFRAD and was transferred to a USAR unit in Bristol, Pennsylvania.

7.  The applicant was discharged from the USAR on 19 July 1987 and he had no status which constitutes a break in service through 1 February 1989.  He enlisted in the USAR on 2 February 1989 and he entered active duty in the Active Guard Reserve (AGR) Program on 1 September 1989 and he remained on active duty until he was honorably (REFRAD) and was transferred to the Retired List effective 1 November 2002.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) issued at the time of his REFRAD reflects that he had 10 years and 2 months of prior active service for a total of 23 years and
4 months of total active service.

8.  On 19 December 2005, the Army Grade Determination Review Board (AGDRB) determined that the highest grade the applicant had served satisfactorily for the purpose of computation of retired pay was CPT/O-3 and that the date of his advancement on the Retired List would be determined by officials at the Human Resources Command, St Louis (HRC-STL).

9.  Documents provided by the applicant include Letter Orders, dated 7 April 1976, authorizing him travel to attend the 1976 ROTC Advanced Camp from 
11 June to 21 July 1976.  The orders were issued by the First ROTC Instructor Group at Widener College.

10.  The applicant also provides leave and earnings statements (LESs) showing he performed AT from 25 June 1983 to 9 July 1983 (15 days), AT from 19 September to 30 September 1983 (12 days), ADT from 24 to 25 September 1983 (2 days), ADT on 23 January 1984 (1 day), ADT on 29 January 1984         (1 day), ADT from 3 to 4 March 1984 (2 days), ADT from 8 September to 19 September 1986 (12 days), ADT on 18 October 1986 (1 day), ADT on 24 October 1986 (1 day), ADT from 1 November to 5 November 1986 (5 days), ADT on 15 November 1986 (1 day), and ADT from 11 to 12 July 1987 (2 days).

11.  A review of the applicant's ARPC Form 606-E and his Chronological Statement of Retirement Points (ARPC Form 249-E) shows that during the retirement years covering 18 June 1975 to 7 March 1976, he was credited with no active duty points.  He was also not credited with any active duty points for the periods of 8 March to 20 July 1976 and 21 July 1983 to 20 July 1984.  Additionally, he was only credited with 4 active duty days during the period of 21 July 1986 to 18 July 1987 and 11 days of active duty during the period of 2 February to 31 October 2002 (a period in which he was on active duty the entire period until he retired).

12.  The Department of Defense Military Pay and Allowances Entitlements Manual, also known as the DOD Pay Manual, provides that for commissioned officers, any period of service after 13 October 1964 as a member of the Army, Navy, or Air Force Reserve Officers' Training Corps, is not creditable for service, notwithstanding that they held concurrent Reserve status until it the credit was reinstated in September 1996, retroactive to 1 August 1979.

13.  Title 10, U. S. Code, section 3964b(3) states Reserve enlisted members of the Army who at the time of retirement are serving on active duty are entitled, when their active service plus service on the retired list totals 30 years, to be advanced on the retired list to the highest grade in which they served satisfactorily on active duty.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he served 14 days of AT at Fort Drum, New York on or about July 1975 has been considered; however, he has failed to show through the evidence of record and the evidence submitted with his application that such was the case.  Therefore, in the absence of evidence to show that he actually performed 14 days of AT, there appears to be no basis to grant him credit for this period of time. 

2.  The applicant's contention that he should be granted 42 days of credit for attending the ROTC Advanced Camp at Fort Bragg from 11 June to 21 July 1976 has also been considered and found to lack merit.  While it is conceded that he attended training at Fort Bragg, the applicable regulatory guidance provides that ROTC service was not creditable service for retirement purposes during the period he attended ROTC.  Accordingly, he is not entitled to active duty credit for that period.

3.  The LES provided by the applicant showing that he performed 15 days of AT during the period from 25 June to 9 July 1983 has been considered.  However, he was credited with 324 active duty points during the period of 21 July 1982 to 20 July 1983 and there is insufficient evidence to determine whether the applicant was or was not credited with this period of service.  Therefore, absent evidence to establish that he did not receive credit for this period, there appears to be no basis to grant credit at this time.

4.  The applicant's retirement points statement shows he was granted no active duty points for the period from 21 July 1983 to 20 July 1984.  However, he has provided LESs that show he performed 12 days of AT from 19 September to 30 September 1983, 2 days of ADT from 24 to 25 September 1983, 1 day of ADT on 23 January 1984, 1 day of ADT on 29 January 1984 and 2 days of ADT from 3 to 4 March 1984.  Accordingly, he is entitled to be credited with 18 days of active duty credit for this period.

5.  The applicant's retirement points statement shows he was granted four active duty points for the period from 21 July 1986 to 18 July 1987.  However, he has provided LESs to show he performed 12 days of ADT from 8 September to 
19 September 1986, 1 day of ADT on 18 October 1986, 1 day of ADT on 24 October 1986, 5 days of ADT from 1 to 5 November 1986, 1 day of ADT on 15 November 1986 and 2 days of ADT from 11 to 12 July 1987 for a total of 22 days of active duty.  The applicant has not provided, and the records do not contain sufficient evidence to establish what the period of 4 days he was credited with were, therefore, it would be appropriate to credit him with a total of 18 active duty days for this period. 

6.  The applicant's retirement points statement also shows he was granted no active duty points for the period from 2 February to 31 October 2002, a period in which all of his service was on active duty.  Therefore, he is entitled to receive active duty credit of 273 days for that period of service.

7.  Accordingly, the applicant is entitled to have his retirement points statement corrected to reflect all of the adjustments previously discussed, to have his service adjusted to reflect an additional 309 days of active duty credit, and to adjust his authorized date of advancement on the Retired List to the rank of CPT by the same amount of service with entitlement to any back pay and allowances that flow from this action if that service is not already accounted for.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

_____x__  ____x___  ____x___  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:

	a.  adjusting his retirement points for the period from 21 July 1983 to 20 July 1984 to show he was granted 18 active duty points;

	b.  adjusting his retirement points for the period from 21 July 1986 to 18 July 1987 to show he was granted 18 active duty points;

	c.  adjusting his retirement points for the period from 2 February to                31 October 2002 to show he was granted 273 active duty points; and 

	d.  by adjusting his service to reflect an additional 309 days of active duty credit and adjusting his authorized date of advancement on the Retired List to the rank of CPT by the same amount of service if that service has not already been accounted for, with entitlement to any back pay and allowances that flow from this action.

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 granting him 14 days of active duty credit for July 1975, active duty credit for ROTC Advanced Camp in 1976, and active duty credit of 15 days during the period from 25 June to 9 July 1983.  




      _______ _   _x______   ___
               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)                                         AR20080012936



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ABCMR Record of Proceedings (cont)                                         AR20080012936



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