IN THE CASE OF:	

		BOARD DATE:	      8 OCTOBER 2009

		DOCKET NUMBER:  AR20080015664 


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 reconsideration of the Board's denial of his previous request for correction of the computation of his retired pay, in effect by:

	a.  correcting his retirement order to show inclusion of his four years in the Health Professions Scholarship Program (HPSP) as service credit for longevity and percentage for retirement pay purposes;

	b.  requesting the Defense Finance and Accounting Service (DFAS) complete a thorough audit of his retired pay computations to include recalculation of retired pay commencing 1 October 2007, payment of the difference in retired pay for the period 1 October 2007 until the time of correction of any error(s) is completed, and adjust future retired pay accordingly; and

	c.  correcting item 12a on his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he entered active duty on "1983-06-17" instead of "1983-05-17" and correcting his DD Form 214 to show four years of prior active service.

2.  The applicant states neither the "Consideration of Evidence" nor "Discussion and Conclusions" sections of the previous record of proceedings addressed whether the four years he was in the Health Professions Scholarship Program (HPSP) are creditable service that should be documented on his DD Form 214, retirement orders, and the DFAS retired pay calculation.

3.  The applicant provides 21 enclosures in support of this application.  These include:  the original Army Board for Correction of Military Records (ABCMR) request for correction; the denial letter from the ABCMR; a DA Form 7301-R (Officer Service Computation for Retirement); an automated service computation for retirement, dated 28 September 2007; an amendment to his retirement orders; a DD Form 214; a letter of appointment as a Reserve Commissioned Officer of the Army; an Oath of Office for Military Personnel; orders noting the acceptance of his appointment in the HPSP program; Medical College of Georgia transcripts; an Officer Record Brief (ORB); a service agreement to participate in the Department of the Army Armed Forces HPSP; an extract of Title 37 U.S. Code 205, Public Law 92-426 section 2126 (Establishment of the HPSP Program); an e-mail from MAJ Gil****** dated 3 June 2008; an ABCMR memorandum of consideration docket number AR200004225; a G-1 retirement services office CSB/REDUX FAQ's from 2006; DOD Financial Management Regulation (FMR) 7B, Chapter 1, 0103 - Service Creditable for Percentage Pay; retirement orders; a DFAS retired pay calculation letter; and DOD FMR 7A, Chapter 1, 0101 - Creditable Service. 

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20070018271 on 6 May 2008.

2.  The majority of the documents provided by the applicant are new evidence, which requires that the Board reconsider his request.

3.  In the Board's first consideration of this case the applicant stated, in effect, that the time in service used for his retired pay computation was in error.  He stated that his original orders indicated his retired pay would be based on 24 years, 3 months, and 14 days.  However, the day before his retirement these orders were amended in an attempt to correct the mistake and orders were published that showed 28 years, 3 months, and 14 days of service.  He contended that because of this last minute change in the orders, his retired pay was erroneously computed and remained in error.

4.  In the Board's first consideration of this case, it was shown that on 30 September 2007, the applicant was retired.  The DD Form 214 issued at the time showed that he held the rank of colonel and that he had completed a total of 24 years, 3 months, and 14 days of active military service.  

5.  Based on verbiage in the original request and documentation provided therewith, the Board recommended denial of the applicant's request because no error was found in the retired pay calculations based on available information.  The applicant had provided a DA Form 7301-R and retirement orders in support of his original application.

6.  The applicant's military records show that on 14 March 1979, he signed a Department of the Army Armed Forces Health Professions Scholarship Program Service Agreement.

7.  On 29 April 1979, the applicant completed the Oath of Office - Military Personnel and accepted an appointment as a Reserve Commissioned Officer of the Army in the rank of second lieutenant.

8.  The applicant was reassigned to the U.S. Army Control Group (OADO [Officer Active Duty Obligor]) effective 29 April 1979 due to his acceptance of an appointment in the HPSP.

9.  The applicant's records show he attended medical school during the period 6 September 1979 to 30 May 1980, 8 September 1980 to 22 May 1981, 3 August 1981 to 30 May 1982, and 5 July 1982 to 29 May 1983.  On 11 June 1983, he graduated from medical school and was awarded his medical degree.

10.  On 11 June 1983, he accepted an appointment as a Reserve Commissioned Officer of the Army in the rank of first lieutenant.  The appointment document indicates the four years time served in the HPSP was not valid for pay entry basic date purposes and was not the result of prior military service.

11.  A DD Form 220 (Active Duty Report), dated 8 August 1984, shows the applicant entered active duty on 17 June 1983.

12.  The applicant's ORB, dated 6 July 2007, shows his Basic Active Service Date (BASD) was 17 June 1983.

13.  The applicant's Official Military Personnel File (OMPF) contains United States Army Garrison (USAG) Benelux Central Processing Center Orders 
242-0101, dated 30 August 2007, which authorized the applicant's retirement on 30 September 2007 and his placement on the Retired List in the rank of colonel on 1 October 2007.  These orders indicated the applicant had completed 24 years, 3 months, and 14 days of active military service for retirement percentage computation and basic pay scale purposes.

14.  USAG Benelux Central Processing Center Orders 271-0100, dated 
28 September 2007, amended Orders 242-0101 by changing the basic pay years of service to 28 years, 3 months, and 14 days.
15.  The original request contained a retirement computations form showing that the applicant's total active service was 24 years, 3 months, and 14 days and his total service for basic pay purposes was 28 years, 7 months, and 26 days.  

16.  The applicant provided an automated service computation for retirement worksheet, dated 28 September 2007 with this request.  This worksheet shows the applicant was credited with the 4 years of HPSP for total service for basic pay and retirement percentage purposes of 28 years, 3 months, and 14 days.  He also provided an ARPC Form 249-E (Chronological Statement of Retirement Points) dated 6 November 2008 which shows full Regular Army retirement credit for the 4 years he was in the HPSP.

17.  A review of the applicant's Summary of Retired Pay Account prepared on 25 October 2007 shows service for basic pay of 32 years, 5 months, and 2 days.  

18.  Title 10, U.S. Code, section 2126(a) (10 USC 2126(a)) states that, except as provided in subsection (b) (which pertains to a nonregular retirement), service performed while a member of a Health Professions Financial Assistance Program shall not be counted in determining eligibility for retirement other than by reason of a physical disability incurred while on active duty as a member of the program or in computing years of service creditable under section 205 (computation of service creditable for basic pay) of Title 37 (Pay and Allowances of the Uniformed Services).

19.  Army Regulation 601-141 (U.S. Army Health Professions Scholarship, Financial Assistance, and Active Duty Health Professions Loan Repayment Programs) states in pertinent part that determination of creditable service for military service performed while a member of the HPSP will not be counted in determining eligibility for retirement other than by reason of a physical disability incurred while on active duty as a member of the program; or in computing years of service creditable under 37 USC 205.

20.  In the processing of this case, an advisory opinion was obtained from the Graduate Medical Education Division, Office of The Surgeon General.  That office noted that the applicant should be entitled to creditable service for his time in the HPSP because he was pre-DOPMA (Defense Officer Personnel Management Act), which was effective on 15 September 1981.  The Office of The Surgeon General provided two previous ABCMR decisions in support of their advisory opinion.  The advisory opinion is that the applicant is entitled to 28 years, 3 months, and 14 days of creditable service as he was definitely in the pre-DOPMA period.

21.  In the processing of this case, on 25 August 2009, an advisory opinion was obtained from the DFAS, U.S. Military Retired Pay.  The advisory official recommended that if the Army finds the applicant's claims to be valid that the Army provide an amended retirement order crediting him with the additional service.

22.  Army Regulation 635-5 (Separation Documents) is a synopsis of the Soldier's most recent period of continuous active duty service.  It provides a brief, clear-cut record of active service at the time of release from active duty, retirement, or discharge.  This regulation provides that for item 12a (Date Entered Active Duty (AD) This Period), enter the beginning date of the continuous period of AD for issuance of this DD Form 214, for which a DD Form 214 was not previously issued.

23.  Army Regulation 635-5 provides that the amount of active service this period, computed by subtracting item 12a from 12b will be entered in item 12c (Net Active Service This Period). 

DISCUSSION AND CONCLUSIONS:

1.  In the Board's first consideration of this case, it was shown that on 30 September 2007, the applicant was retired.  The DD Form 214 issued at the time showed that he held the rank of colonel and that he had completed a total of 24 years, 3 months, and 14 days of active military service.  However, the applicant provided numerous printouts, commissioning documents, an HPSP agreement, and other documents as new evidence in support of this request for reconsideration that are useful in addressing the areas he contends were not addressed in the original consideration.

2.  The applicant contends he should be granted active duty credit for retirement for the time he spent as a student in the HPSP and correction of his DD Form 214 to show this time as constructive credit.  However, 10 USC 2126(a) and Army Regulation 601-141 specifically excludes this time from counting while an individual is serving on active duty.  Therefore, he is not entitled to have his     DD Form 214 corrected to show this time as active service.

3.  The applicant contends that his time in the HPSP should count toward his retirement pay calculations and believes that his retirement orders should be amended to show 28 years, 3 months, and 14 days for retirement pay percentage purposes.  In accordance with the governing statutes and DOD policy, the time the applicant spent as a medical student is creditable service for computing retired pay only after the individual is retirement eligible.  The evidence of record confirms the applicant completed 24 years, 3 months, and 14 days of net active service.  While his HPSP time was not creditable for gaining retirement eligibility, upon his retirement and because he began the HPSP prior to 15 September 1981, he is entitled to 4 years service credit for longevity and retirement pay percentage purposes only.  Therefore, he is entitled to have his retirement orders amended to show 28 years, 3 months, and 14 days of service credit for both basic pay and retirement percentage purposes (Section 1405) instead of the 24 years, 3 months, and 14 days as currently shown.

4.  The applicant is entitled to a DFAS audit of his retirement pay computations based on Board recommendations to correct his service for retirement pay purposes, payment of any difference in retired pay as a result of these corrections, and adjustment to his future retired pay as appropriate.

5.  A DD Form 220 shows the applicant entered active duty on 17 June 1983.  Therefore, he is entitled to have item 12a of his DD Form 214 amended to show "19830617."  While item 12c is computed by subtracting item 12a from item 12b there is no evidence that item 12c is in error as currently shown; therefore, there is no basis for correcting this item.

6.  In view of the foregoing, the applicant's records should be corrected as shown below.

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 partial amendment of the ABCMR's decision in Docket Number AR20070018271, dated 6 May 2008.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  revoking USAG Benelux Central Processing Center Orders 271-0100, dated 28 September 2007;

	b.  amending the line entry, "Section 1405: 24 years, 3 months, 14 days" of USAG Benelux Central Processing Center Orders 242-0101, dated 30 August 2007, which authorized the applicant's retirement on 30 September 2007 and placement on the Retired List on 1 October 2007 to show "Section 1405: 28 years, 3 months, 14 days";

	c.  amending the line entry, "Basic Pay: 24 years, 3 months, 14 days" of USAG Benelux Central Processing Center Orders 242-0101, dated 30 August 2007, to show "Basic Pay: 28 years, 3 months, 14 days"; 

	d.  amending the line entry, "Additional instructions:  Not applicable" of USAG Benelux Central Processing Center Orders 242-0101, dated 30 August 2007, to show "Additional instructions: Individual is credited with 4 years of additional post-retirement credit for retirement percentage and basic pay purposes for time served in the Health Professions Scholarship Program.  (This time is not creditable for active service or basic pay purposes prior to the date the individual was placed on the retired list.)"; and 

	e.  amending item 12a of his DD Form 214 to show "19830617."   

2.  The Board further recommends that based on the above corrections, DFAS audit the applicant's retired pay account, pay him any difference in retired pay as a result of these corrections, and make any appropriate adjustments to his future retired pay.

3.  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 changing the active duty service time in item 12c on the applicant's DD Form 214.




      _______ _   __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)                                         AR20080015664



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ABCMR Record of Proceedings (cont)                                         AR20080015664



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