IN THE CASE OF:	  

		BOARD DATE:	        4 December 2008

		DOCKET NUMBER:  AR20080013261 


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 correction of his DARP Form 249 (Chronological Statement of Retirement Points) to show retirement points credit for service performed as a senior Reserve Officers' Training Corps program (ROTC) cadet from 26 August 1946 to 27 May 1949.

2.  The applicant states that he spent two years in advanced ROTC at the University of Maine as a paid cadet prior to being commissioned in the U.S. Army Reserve (USAR).  He was a cadet during the two school years of 1947-1948 and 1948-1949 with a six-week summer camp at Fort Monmouth, New Jersey between those years.

3.  The applicant provides a copy of his DARP Form 249, dated 13 October 1986; and copies of two letters, dated 22 October 2005 and 9 January 2006, addressed to the Commander, U.S. Army Reserve Command, St. Louis, Missouri in support of his request.

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 records show that he was born on 10 March 1927, enlisted in the U.S. Marine Corps (USMC) on 31 July 1945, and was honorably discharged on 25 August 1946. 

3.  The applicant's record is void of his ROTC enlistment contract; however, Item 18 (Record of Assignments) of his DA Form 66 (Officer Qualification Record) shows that the applicant completed:

	a.  his first year of ROTC at the University of Maine from 6 October 1947 to 31 May 1948;

	b.  an advanced ROTC camp at Fort Monmouth, from 19 June 1948 to
31 July 1948; and

	c.  his second year of ROTC at the University of Maine from 20 September 1948 to 20 May 1949.

4.  On 6 January 1949, the applicant submitted an application for appointment as a commissioned officer.  He was subsequently appointed as a Signal Corps (SC) second lieutenant (2LT) in the Army of the United States and executed an oath of office on 28 May 1949.  He was assigned to the 832nd Signal Construction Company, Bangor, Maine.

5.  On 13 November 1952, the applicant was appointed in the Officers Reserve Corps as a Reserve commissioned officer in the rank of first lieutenant (1LT) and executed an oath of office on the same date.

6.  The applicant's records also show that he was promoted to captain (CPT) on 2 December 1957 and was transferred from the SC to the Civil Affairs (CA) Branch on 23 September 1961.  He was subsequently promoted to major (MAJ) on 1 December 1964 and lieutenant colonel (LTC) on 16 September 1971.

7.  On 11 June 1973, Headquarters, First U.S. Army, Fort Meade, Maryland, issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).  This letter notified the applicant that he had completed the required years of service and would be eligible for retired pay upon application at age 60. 

8.  On 12 April 1977, Office of the Adjutant General, Reserve Components Personnel and Administration Center, St. Louis, published Orders 04-72188, releasing the applicant from the USAR Control Group (Reinforcement) and transferring him to the USAR Control Group (Retired Reserve), effective 26 June 1977, for completion of maximum authorized years of service.

9.  On 12 January 1987, the applicant submitted a request for retired pay.  His request was subsequently approved and accordingly, on 4 February 1987, the U.S. Army Reserve Personnel Center, St. Louis, published Orders P-000275, transferring the applicant to the Retired List in his retired rank of LTC, effective 10 March 1987.  He was credited with 38 years, 10 months, and 8 days of total service for pay, of which 28 years, 1 month, and 25 days was qualifying for retirement.

10.  The applicant turned 60 on 10 March 1987.

11.  The applicant's DARP Form 249, dated 13 October 1986, shows he completed 28 years, 1 month, and 25 days of qualifying service for retirement.   The period from 26 August 1946 to 27 May 1949 is shown as a "Break" and did not qualify for retirement. 

12.  Title 10, U.S. Code (USC), section 1041 states that the term "service" performed as an ROTC cadet means service performed in the Selected Reserve. This dual participation is possible under the Simultaneous Membership Program (SMP.)  After 13 October 1964, provisions of the law required the removal of retirement points and service earned by ROTC/SMP members while enrolled in the advanced course of ROTC, once commissioned.  On or after 1 August 1979, service performed by ROTC/SMP members enrolled in advanced ROTC course is "creditable."  Public Law (PL) 102-484, section 517, dated 23 October 1992, amended the above provision to provide service credit, retroactive to 31 July 1990, for officers appointed under 10 USC 2106 for enlisted active duty service performed, other than for training, while a member of the Selected Reserve.  
PL 104-201, section 507, dated 23 September 1996 amended the provisions of the law to provide service credit for the SMP retroactive to 1 August 1979, when SMP actually began.  The revisions resulted in no increase in pay, retired or retainer pay before the date of enactment, 23 September 1996.  If the credit resulted in a higher basic pay due to a change in the pay entry basic date (PEBD), the effective date of the increase would have been 23 September 1996.

13.  The Department of Defense Pay Manual, paragraph 10103.f, states that for commissioned officers, any period of ROTC service after 13 October 1964 is not creditable, notwithstanding that they held concurrent Reserve status.  However, PL 104-201, Section 507, dated 23 September 1996, amended the provisions of law to provide service credit to officers commissioned from the ROTC advanced course program who also participated in the SMP, retroactive to 1 August 1979 when the SMP was established.  The law specifies that these PEBD adjustments will not be grandfathered for pay, that any adjustment of a Soldier’s PEBD will only entitle him/her to an increase in pay from the date the law was passed.  The SMP service credit affects only the PEBD for pay purposes.  It does not affect the Basic Active Duty Date (BASD), Basic Date of Appointment (BDA), or Date of Rank (DOR) for officers.

14.  Army Regulation 140-185 (Training and Retirements Point Credit) provides the policy for training and retirement point credits for members of the USAR.  Paragraph 1-3 states that only Ready Reserve Soldiers (other than ROTC and Delayed Entry Control Group Soldiers) and Active Standby Reserve are authorized retirement point credit.  The exclusion of ROTC service, potential participants in the ROTC/SMP (those not enrolled in the Advance ROTC) are authorized retirement points and to be paid for drills in the grade and years of service attained.  Participants in the ROTC/SMP enrolled in the Advanced ROTC Course are authorized retirement points credit and pay for drills until commissioned.  Points and service time while in the advanced course are then removed.  This regulation further provides that a qualifying retirement year is a full 12-month period in which a Soldier is in an active status and earns a minimum of 50 retirement points.  A qualifying partial retirement year is a period less than 12 months in which a Soldier is in an active status and earns the minimum number of retirement points as designated in the pro-rated tables in Appendices A, B, and C.

15.  Title 10, USC, section 2106 states that upon satisfactorily completing the academic and military requirements of the program of advanced training, a member of the program who was selected for advanced training under section 2104 of this title may be appointed as a regular or Reserve officer in the appropriate armed force in the grade of second lieutenant or ensign, even though he is under 21 years of age.  The date of rank of officers appointed under this section in May or June of any year is the date of graduation of cadets or midshipmen from the U.S. Military Academy, the U.S. Naval Academy, or the U.S. Air Force Academy, as the case may be, in that year.  The Secretary of the military department concerned shall establish the date of rank of all other officers appointed under this section.  In computing length of service for any purpose, an officer appointed under this section may not be credited with enlisted service for the period covered by his advanced training, other than any period of enlisted service performed on or after 1 August 1979 as a member of the Selected Reserve.

16.  Title 10, USC, section 12732 governs entitlement to retired pay and computation of years of service.  It states that except as provided in subsection (b), for the purpose of determining whether a person is entitled to retired pay under section 12731 of this title, the person’s years of service are computed by adding the following: 

	a.  The person’s years of service, before 1 July 1949, in the armed forces; the federally recognized National Guard before June 15, 1933; a federally recognized status in the National Guard before June 15, 1933; the National Guard after June 14, 1933, if his service therein was continuous from the date of his enlistment in the National Guard, or his Federal recognition as an officer therein, to the date of his enlistment or appointment, as the case may be, in the National Guard of the United States, the Army National Guard of the United States, or the Air National Guard of the United States; the Navy Reserve Force; the Naval Militia that conformed to the standards prescribed by the Secretary of the Navy; the National Naval Volunteers; the Army Nurse Corps, the Navy Nurse Corps, the Nurse Corps Reserve of the Army, or the Nurse Corps Reserve of the Navy, as it existed at any time after February 2, 1901; the Army under an appointment under the Act of December 22, 1942; an active full-time status, except as a student or apprentice, with the Medical Department of the Army as a civilian employee (in the dietetic or physical therapy categories, if the service was performed after April 6, 1917, and before April 1, 1943; or in the occupational therapy category, if the service was performed before appointment in the Army Nurse Corps or the Women’s Medical Specialist Corps and before 1 January 1949, or before appointment in the Air Force before 1 January 1949, with a view to designation as an Air Force nurse or medical specialist). 

	b.  Each one-year period, after 1 July 1949, in which the person has been credited with at least 50 points on the following basis:  One point for each day of active service; or full-time service under sections 316, 502, 503, 504, and 505 of Title 32 while performing annual training duty or while attending a prescribed course of instruction at a school designated as a service school by law or by the Secretary concerned if that service conformed to required standards and qualifications;  one point for each attendance at a drill or period of equivalent instruction that was prescribed for that year by the Secretary concerned and conformed to the requirements prescribed by law, including attendance under section 502 of Title 32; points at the rate of 15 a year for membership in a Reserve component of an armed force, in the Army or the Air Force without component, or in any other category covered by subsection (a)(1) except a regular component; points credited for the year under section 2126(b) of this Title; one point for each day on which funeral honors duty is performed for at least two hours under selected sections of this Title or Title 32, unless the duty is performed while in a status for which credit is provided under another subparagraph of this paragraph.  

	c.  The following service may not be counted under subsection (a):  Service (other than active service) in an inactive section of the Organized Reserve Corps or of the Army Reserve, or in an inactive section of the officer's section of the Air Force Reserve; service (other than active service) after June 30, 1949, while on the Honorary Retired List of the Navy Reserve or of the Marine Corps Reserve; service in the inactive National Guard; service in a non-federally recognized status in the National Guard; service in the Fleet Reserve or the Fleet Marine Corps Reserve; service as an inactive Reserve nurse of the Army Nurse Corps; service in any status other than that as commissioned officer, warrant officer, nurse, flight officer, aviation midshipman, appointed aviation cadet, or enlisted member, and selected others.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant completed a period of service in the USMC.  His record is void of the enlistment contract that shows he enlisted for the ROTC program.  Nevertheless, he subsequently attended advance ROTC during the period 26 August 1946 to 27 May 1949 and was subsequently appointed as an SC 2LT in the Army of the United States and executed an oath of office on 28 May 1949.

2.  By law, service as a member of the Army ROTC is creditable for service before 14 October 1964 for an enlisted member.  However, for commissioned and warrant officers, the member must have had a concurrent Reserve status.  In 
this case, there is no evidence in the applicant's records and the applicant did not provide any evidence that he had a concurrent Reserve status.  Therefore, he would not be entitled to service credit or adjustment of his chronological statement of retired points to show such credit.

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)                                         AR20080013261



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ABCMR Record of Proceedings (cont)                                         AR20080013261



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