IN THE CASE OF:	  

		BOARD DATE:	  	  10 March 2009

		DOCKET NUMBER:  AR20080014713 


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 records to show creditable service for his active duty service in 1970 and 1991.

2.  The applicant states, in effect, the retirement point credit for his active duty service in the U.S. Navy while serving in Vietnam in 1970 and in the U.S. Army while serving in the Gulf War in 1991 is in error, which causes an error in his total retirement points.  He also states that he served in the Gulf War and worked in several commands with hazardous material (HAZMAT).  The applicant further states he lost his ability to practice medicine and the opportunity to command because of toxic exposure to chemicals.  He adds that he has progressive neurological impairments and memory loss, is 100 percent disabled, and must rely on others for help.  The applicant concludes by stating that he has 26 years of service; however, his retired pay statement shows 40 years, 5 months, and
1 day of service for basic pay and 14.04 equivalent years of service, and he asks for an explanation.

3.  The applicant provides copies of a DD Form 214N (Armed Forces of the United States Report of Transfer or Discharge) with an effective date of
18 February 1971; DD Form 214 (Certificate of Release or Discharge from Active Duty) with an effective date of 1 July 1992; Army National Guard (ARNG) Retirement Points History Statement, dated 5 November 2006; and Defense Finance and Accounting Service (DFAS), Cleveland Center, Cleveland, Ohio, Summary of Retired Pay Account, dated 24 July 2008.


CONSIDERATION OF EVIDENCE:
1.  The applicant’s military personnel records show that he enlisted in the U.S. Naval Reserve (USNR) for a period of 6 years on 24 August 1965 and was ordered to active duty in the U.S. Navy on 5 July 1966.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty (MOS) 8404 (Basic Hospital Corpsman).  The applicant’s records show he served two tours of overseas service (25 months) in the Republic of Vietnam.

2.  The applicant's military personnel records contain a DD Form 214 that shows he entered active duty this period on 5 July 1966, was honorably released from active duty on 18 February 1971 based on completion of Vietnam tour within
90 days of expiration of active obligated service, and transferred to the USNR Manpower Center, Bainbridge, Maryland to complete his remaining military service obligation.  At the time he had completed 4 years, 7 months, and 14 days of net service this period; 10 months and 11 days other service; 2 years,
9 months, and 19 days of foreign service; and 5 years, 5 months, and 25 days of total service. 

3.  The applicant was honorably discharged from the USNR on 27 May 1977.

4.  The applicant’s military personnel records show he had a non-military civilian break in service from 28 May 1977 through 1 November 1979.

5.  The applicant’s military personnel records show he was appointed as a Reserve warrant officer in the Army National Guard (ARNG) on 2 November 1979 and transferred to the U.S. Army Reserve (USAR) on 1 June 1980.  The applicant was appointed a Reserve commissioned officer of the Army, in the Medical Corps, in the rank of Captain (CPT)/pay grade O-3 and ordered to active duty on 23 June 1986.

6.  The applicant’s military personnel records contain a copy of Headquarters, U.S. Total Army Personnel Command, Alexandria, Virginia, memorandum, dated 1 May 1989, subject:  Correction of Military Records and DA Form 1506 (Statement of Service for Computation of Length of Service for Pay Purposes), dated 14 May 1989.  These documents show, in pertinent part, that the Army Board for Correction of Military Records (ABCMR) directed that all of the applicant’s Army records be corrected to show that, for the sole purpose of being credited for basic (longevity) pay, the applicant enrolled in the U.S. Army Health Professions Scholarship Program on 14 September 1981.

7.  The applicant's military personnel records contain a copy of Headquarters, 341st Medical Group, Orders 03-05, dated 9 February 1991, that show the applicant was attached to the 138th Medical Company (Clearing) in support of Operation Desert Storm effective 9 February 1991.

8.  The applicant’s military personnel records contain a DD Form 214 that shows he entered active duty this period on 23 June 1986, served in Southwest Asia, was honorably released from active duty on 1 July 1992 based on miscellaneous reasons in lieu of unqualified resignation, and transferred to the USAR Control Group (Reinforcement), St. Louis, Missouri.  At the time he had completed
6 years and 9 days of net active service this period; 8 years, 9 months, and
2 days of total prior active service; 3 months and 4 days of foreign service; and
9 years, 7 months, and 23 days of total prior inactive service.

9.  The applicant’s military personnel records show that he affiliated with the Kentucky ARNG (KYARNG) on 19 August 1992.

10.  The applicant’s military personnel records contain a copy Commonwealth of Kentucky, Department of Military Affairs, Frankfort, Kentucky, memorandum, dated 14 March 1995, subject:  Notification of Eligibility for Retired Pay at Age 60.  This document shows, in pertinent part, the applicant was notified that having completed the required years of service, he would be eligible for retired pay upon application at age 60.  This document also shows that the applicant’s eligibility for retired pay may not be denied or revoked on the basis of any error, miscalculation, misinformation, or administrative determination of years of creditable service performed unless it resulted directly from fraud or misrepresentation on his part.  This document further shows that the number of years of creditable service upon which retired pay is computed may be adjusted to correct any error, miscalculation, or administrative determination.

11.  The applicant’s military personnel records contain a copy of Commonwealth of Kentucky, Department of Military Affairs, Frankfort, Kentucky, Orders 327-068, dated 22 November 1996, that show the applicant was promoted to the rank of Lieutenant Colonel (LTC)/pay grade O-5 effective 16 November 1996.

12.  The applicant’s military personnel records contain a “Corrected Copy” of Commonwealth of Kentucky, Department of Military Affairs, Frankfort, Kentucky, Orders 033-041, dated 2 February 1998, that shows the applicant was honorably separated from the ARNG and KYARNG effective 31 January 1998 and transferred to the USAR Personnel Command (Retired Reserve), St. Louis, Missouri.

13.  The applicant’s military personnel records contain a National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) with an effective date of 31 January 1998 and NGB Form 22A (Correction to NGB Form 22, Report of Separation and Record of Service in the ARNG of Kentucky), dated
29 August 1998.  These documents show, in pertinent part, the applicant entered the ARNG and KYARNG on 19 August 1992; honorably retired on 31 January 1998 based on medical, physical or mental condition; and transferred to the Retired Reserve.  At the time he had completed 5 years, 5 months, and 12 days of net service this period.

14.  The applicant’s military personnel records contain a copy of Headquarters, U.S. Army Human Resources Command (USA HRC), St. Louis, Missouri, Orders P05-806457, dated 8 May 2008, that show the applicant was retired and placed on the retired list in the grade of LTC (O-5) effective 2 July 2008.

15.  The applicant’s Total Army Personnel Data Base (TAPDB) electronic record, accessible via the USA HRC Integrated Web Services (IWS) portal contains, in pertinent part, the applicant’s online ARNG Retirement Points History Statement.

     a.  This document shows, in pertinent part, the applicant served as a Reserve member on active duty from 5 July 1966 through 18 February 1971, earned 1,690 active duty points, 75 membership points, and 1,764 total points for retired pay during this period of service.  More specifically, the applicant’s ARNG Retirement Points History Statement, in pertinent part, shows:

          (1)  for the retirement year (RY) line entry beginning 5 July 1966 and RY ending (RYE) 23 August 1966, which constitutes 50 calendar days, he was awarded 50 active duty points;

         (2)  for the RY line entry beginning 24 August 1966 and RYE 23 August 1967, which constitutes 365 calendar days, he was awarded 365 active duty points;

         (3)  for the RY line entry beginning 24 August 1967 and RYE 23 August 1968, which constitutes 366 calendar days (i.e., a leap year), he was awarded 366 active duty points;

         (4)  for the RY line entry beginning 24 August 1968 and RYE 23 August 1969, which constitutes 365 calendar days, he was awarded 365 active duty points;

         (5)  for the RY line entry beginning 24 August 1969 and RYE 23 August 1970, which constitutes 365 calendar days, he was awarded 365 active duty points; and

         (6)  for the RY line entry beginning 24 August 1970 and RYE 18 February 1971, which constitutes 179 calendar days, the applicant was awarded
179 active duty points.

     b.  This document shows, in pertinent part, the applicant served as a Reserve member on active duty from 23 June 1986 through 1 July 1992, earned
2,201 active duty points, 90 membership points, and 2,261 total points for retired points during this period of service.

          (1)  for the RY line entry beginning 23 June 1986 and RYE 1 November 1986, which constitutes 132 calendar days, he was awarded 132 active duty points;

         (2)  for the RY line entry beginning 2 November 1986 and RYE 1 November 1987, which constitutes 365 calendar days, he was awarded 365 active duty points;

         (3)  for the RY line entry beginning 2 November 1987 and RYE 1 November 1988, which constitutes 366 calendar days (i.e., a leap year), he was awarded 366 active duty points;

         (4)  for the RY line entry beginning 2 November 1988 and RYE 1 November 1989, which constitutes 365 calendar days, he was awarded 365 active duty points;

         (5)  for the RY line entry beginning 2 November 1989 and RYE 1 November 1990, which constitutes 365 calendar days, he was awarded 365 active duty points;

         (6)  for the RY line entry beginning 2 November 1990 and RYE 1 November 1991, which constitutes 365 calendar days, he was awarded 365 active duty points; and

         (7)  for the RY line entry beginning 2 November 1991 and RYE 1 July 1992, which constitutes 243 calendar days, he was awarded 243 active duty points;

     c.  This document also shows, in pertinent part, that the applicant earned 4,030 total active duty points, 5,056 total points for retired pay, and a total of
26 years of creditable service for retired pay.

16.  In connection with the processing of this case, an advisory opinion was obtained from the Chief, Transition and Separations Branch, USA HRC,
St. Louis, Missouri.  The advisory official states that the applicant’s active duty time was checked on the NGB Form 23B (Current Annual Statement), dated
28 December 2002, and the KYARNG credited him with all of his active duty time.  Thus, the ARNG Retirement Points History Statement is correct and, no correction is necessary.

     a.  The advisory official states that the applicant earned 5,056 total points for retired pay, his creditable service was 26 years, and his longevity was 40 years, 5 months, and 1 day.

     b.  The advisory official adds that the DFAS, Cleveland Center, Cleveland, Ohio, Retired Pay Department, sent the applicant a Summary of Retired Pay Account, dated 24 July 2008, that confirms the DFAS utilized the applicant’s correct total points for retired pay and longevity of service in the calculation of the applicant’s retired pay.

     c.  The advisory official also offers a detailed explanation of the service data, information, and calculations used to determine the applicant's retired pay.

17.  On 17 December 2008, the applicant was provided a copy of the Chief, Transition and Separations Branch, USA HRC, advisory opinion in order to have the opportunity to respond to its contents.  To date, the applicant has failed to provide a response.

18.  Army Regulation 140-185 (Training and Retirement Points Credit and Unit Level Strength Accounting Records) prescribes the types of training and activities for which retirement points are authorized.  It also discusses the procedures for recording retirement point credits and training for Reserve Component Soldiers.  Paragraph 2-1 (Criteria for crediting retirement points) states that the limitations on the number of points which may be credited to a Soldier during a retirement year are a maximum of 365 (366 during leap year) points, and a maximum of
90 points for inactive duty training and membership points; however, the Annual or Terminal Statement of Retirement Points will report all points earned.

19.  Department of Defense (DoD) Financial Management Regulation (FMR), Volume 7A (Military Pay Policy and Procedures - Active Duty and Reserve Pay), Chapter 1 (Basic Pay), paragraph 0101 (Creditable Service), subparagraph 010101 (Service Which is Creditable), provides, in pertinent part, that for most members who enter and serve on active duty without a break in service, the basic pay date is the date the member enters active or inactive service.  If however, there is a break in service, the time between periods of service usually is not included.  This document also states, in pertinent part, that creditable service periods include active or inactive service in the Regular service in the Army, Air Force, Navy, Coast Guard, and Marine Corps; Army, Naval, Marine Corps, Air Force, and Coast Guard Reserve; Army of the United States (service without specification of component); Army National Guard; Army National Guard of the United States; National Guard, and National Guard of the United States.  

20.  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 (no-regular retirement) of this Title.

21.  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).

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his military service records should be corrected to show creditable service for his active duty service in 1970 and 1991 and requests an explanation regarding the calculation of his retired pay.

2.  The evidence of record shows that the applicant served on active duty from
5 July 1966 to 18 February 1971 and he was transferred to the USNR effective 19 February 1971.  The evidence of record also shows he completed 4 years,
7 months, and 14 days of net active service during this period and was credited with 1,690 active duty points for this period of service.  More specifically, the evidence of record shows for the RYE 23 August 1970 that represents a total of 365 calendar days, the applicant was awarded 365 active duty points.  In addition, for the RYE 18 February 1971, the last active duty entry prior to the applicant’s transfer to the USNR and that represents 179 calendar days, the applicant was awarded 179 active duty points.  Thus, the evidence of record shows that the applicant’s military personnel records properly document his active duty service; his active duty points, including points for his active duty service in 1970; and total retirement points for this active duty period of service.  Therefore, the applicant is not entitled to correction of his records in this instance.

3.  The evidence of record shows that the applicant served on active duty from 23 June 1986 to 1 July 1992; completed 6 years and 9 days of net active service during this period; and he was credited with 2,201 active duty points for this period of service.  More specifically, the evidence of record shows for the RYE
1 November 1991 that represents a total of 365 calendar days, the applicant was awarded 365 active duty points.  In addition, for the RYE 18 August 1992, the last active duty entry prior to the applicant’s transfer to the USAR Control Group (Reinforcement) and that represents 243 calendar days, the applicant was awarded 243 active duty points.  Thus, the evidence of record shows that the applicant’s military personnel records properly document this active duty service; his active duty points, including points for his active duty service in 1991; and total retirement points for this period of service.  Therefore, the applicant is not entitled to correction of his records in this instance.

4.  The evidence of record shows that the applicant earned 5,056 total points for retired pay; a total of 26 years of qualifying creditable service for retirement; and 40 years, 5 months, and 1 day of service for basic pay.  The evidence of record also shows that the applicant was issued a DFAS Summary of Retired Pay Account providing this pertinent military service data and the calculations used to determine his retired pay.  In addition, in the processing of this case, the applicant was provided a copy of the advisory opinion rendered by the Chief, Transition and Separation Branch, USA HRC, confirming the applicant’s creditable service for retired pay and also providing further explanation of the pertinent military service data and calculations used to determine his retired pay.
Thus, the applicant has been provided a detailed explanation regarding the calculation of his retired pay.  Moreover, the evidence of record confirms that the applicant’s military personnel records properly document his total creditable military service.  Therefore, the applicant is not entitled to correction of his records in this case.
  
5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.


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.




      _______ _   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)                                         AR20080014713



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ABCMR Record of Proceedings (cont)                                         AR20080014713



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