IN THE CASE OF:	  

		BOARD DATE:	       24 FEBRUARY 2009

		DOCKET NUMBER:  AR20080013455 


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 item 23 (Total Service for Percentage Purposes (1405 Service)) of his Service Computation for Separation sheet computed on 26 October 2000 to show 26 years, 10 months, and 12 days; retroactive pay for 1405 service effective 1 July 2001; and that his original retirement orders, dated 8 March 2001, be corrected to show they were corrected prior to his retirement.

2.  The applicant states, in effect, that he needs his pay records at the Defense Finance and Accounting Service (DFAS) corrected to reflect 1405 service credit for medical school and his internship because he is not receiving the correct retired pay.  He points out that the 1405 service on his 8 March 2001 retirement orders is incorrect; however, his retirement orders were amended on 29 July 2008 to reflect the correct 1405 service.

3.  The applicant provides a DD Form 214 (Certificate of Release or Discharge from Active Duty); a Service Computation for Separation sheet computed on 25 July 2008; retirement orders, dated 8 March 2001; a Service Computation for Separation sheet computed on 26 October 2000; and amendment orders, dated 29 July 2008 in support of 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.  Having prior enlisted service in the Regular Army and the U.S. Army Reserve, the applicant was appointed as a Reserve officer on 28 May 1980.  He graduated from Medical School in May 1984 and apparently he completed his internship in 1985.  On 5 July 1985, he entered active duty.  On 8 July 1996, he was appointed as a lieutenant colonel in the Regular Army, Medical Corps.  On 
30 June 2001, the applicant retired in the rank of lieutenant colonel.    

3.  A review of the applicant's official military personnel file on the interactive Personnel Electronic Records Management System revealed a copy of his Service Computation for Retirement sheet computed on 26 October 2000.  Item 23 of this sheet shows he had 22 years and 25 days of 1405 service.  Item 12 (Constructive Service for MC/DC (i.e., Medical Corps and Dental Corps) contains the entry, "00 00 00."  Item 40 (Medical and/or Dental School and Internship) contains the entry, "00 00 00."

4.  The applicant's retirement orders, dated 8 March 2001, show, in pertinent part, the entry, "Section 1405:  22 years, 0 months, 25 days."  

5.  Headquarters, United States Army Garrison, Fort Sam Houston, Orders 
211-0117, dated 29 July 2008, amended the applicant's retirement orders to show the entry, "Section 1405:  26 years, 10 months, 12 days."  In addition, a Service Computation for Separation was prepared.  Item 12 (Constructive Service for MC/DC) contains the entry, "05 00 00" and item 40 Medical and/or Dental School and Internship) contains the entry, "05 00 00."

6.  Several attempts to have DFAS correct the applicant's records were unsuccessful (possibly due to the barring act).

7.  Department of Defense Financial Management Regulation, Volume 7A, Chapter 1, dated April 2007, states, in pertinent part, that some medical and dental officers are entitled to extra credit for longevity purposes to reflect the time spent in medical or dental school.  Medical and dental officers are entitled to constructive credit if on 14 September 1981 the individual was enrolled either in the Armed Forces Health Professions Scholarship Program or the Uniformed Services University of Health Science, completed that program, and was appointed as a medical or dental officer.  Medical and dental officers who meet the criteria in subparagraph 010101.E.1 are entitled to 4 years constructive service credit.  Also, those medical officers who have completed medical internship or its equivalent, or who entered military status while serving such an internship, are entitled to a fifth year of constructive service credit.   

8.  Title 31 U.S. Code, section 3702 establishes a 6-year statute of limitations on filing a claim for payment from the U.S. government.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's Service Computation for Retirement sheet completed on 
26 October 2000 failed to give him constructive credit for his medical school and his internship.  Regulatory guidance shows that he should have received a total of 5 years of constructive credit.   

2.  The amendment orders, dated 29 July 2008, which corrected the applicant's retirement orders to show his 1405 service as 26 years, 10 months, and 12 days, are accepted as sufficient evidence on which to amend item 23 of the applicant's Service Computation for Retirement sheet completed on 26 October 2000.  In addition, since it appears that DFAS will not or cannot correct the applicant's records due to the barring act, the applicant's original retirement orders, dated     8 March 2001, should be corrected to show they were amended prior to his retirement. 

3.  DFAS should audit his retired pay account and pay him any monies due as a result of this correction.

BOARD VOTE:

____X____  ___X_____  ____X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: 

	a.  amending item 23 of his Service Computation for Retirement sheet computed on 26 October 2000 to show his 1405 Service as 26 years, 10 months, and 12 days; item 12 to show he had 5 years, 0 months, and 0 days  of Constructive Service for MC/DC; and item 40 to show he had 5 years, 0 months, and 0 days of Medical and/or Dental School and Internship credit;

      b.  correcting his 8 March 2001 retirement orders to show they were amended prior to his date of retirement to show his 1405 Service as 26 years, 10 months, and 12 days; and   	

	c.  after the above corrections are made, DFAS should audit his records and pay to him any retired pay due him as a result of these corrections.



      _________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)                                         AR20080013455





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ABCMR Record of Proceedings (cont)                                         AR20080013455



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