IN THE CASE OF:	  

		BOARD DATE:	        28 APRIL 2009

		DOCKET NUMBER:  AR20080017821 


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 that he be granted active duty credit for retirement for the time he spent as a student at the Uniformed Services University of the Health Sciences (USUHS).

2.  The applicant states that he graduated from West Point with a Regular Army (RA) commission.  He states that he went to the USUHS "By Law" with a U.S. Army Reserve (USAR) commission.  He states that when he was discharged a clerical error failed to record his USUHS service as active service.

3.  The applicant provides in support of his application, a copy of his DD Form 214 for the period ending 10 July 1981; a copy of his DD Form 214 for the period ending 4 October 1991; Orders A-06-002187, dated 15 June 1981; a copy of a 1st Indorsement to Orders A-06-002187, dated 29 July 1981; a copy of a letter, dated 5 July 1981, appointing him as a Reserve Commissioned Office in the rank of second lieutenant (O-1); and a copy of Orders 44-14, dated 6 March 1985.

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, a West Point Graduate, accepted a commission as a second lieutenant in the RA on 6 June 1979.  He was promoted to first lieutenant on 21 February 1981.

3.  On 18 May 1981, the applicant tendered his unqualified resignation from the RA under the provisions of Army Regulation 635-120 (Officer Resignations and Discharges), chapter 3, due to being accepted to attend the USUHS.  In his unqualified resignation, he requested that his resignation be effective 10 July 1981 and he acknowledged that he understood that he would be furnished an Honorable or a General Discharge Certificate if his resignation was accepted.

4.  On 15 June 1981, Office of the Adjutant General, USAR Components Personnel and Administration Center, St. Louis, MO, Orders A-06-002187 were published ordering the applicant to active duty with a reporting date of 17 August 1981, for a 4-year commitment.  

5.  On 23 June 1981, the applicant's commander was notified that the applicant's resignation for the purpose of attending the USUHS was approved with an effective date of resignation of 10 July 1981.  In the notification the applicant's commander was informed that the applicant would not be discharged until he executed an Oath of Office for Reserve appointment.

6.  On 5 July 1981, the applicant was notified that he had been appointed as a Reserve commissioned officer in the rank of second lieutenant, effective upon his acceptance.  He was informed that his Oath of Office must be returned within 15 days and that, with his consent and by direction of the President, he was being ordered to active duty in the rank of second lieutenant.  He was informed that his active duty orders would be forwarded under separate cover. 

7.  Accordingly, on 10 July 1981, the applicant accepted his appointment and he executed an Oath of Office as a Reserve commissioned officer in the rank of second lieutenant.  He was also honorably released from active duty (REFRAD) on 10 July 1981, under the provisions of Army Regulation 635-120 and "HQDA Ltr DAPC-OPP-MS, dated 23 July 1981," due to his unqualified resignation (i.e., 

to attend USUHS).  The DD Form 214 that he was furnished shows that he had completed 2 years, 1 month, and 5 days of net active service this period and that he was transferred to the OADO [officer active duty obligor] Control Group, USAR Components Personnel and Administration Center, St. Louis.

8.  On 29 July 1981, a 1st Indorsement to Orders A-06-002187 was published directing that the applicant execute an Oath of Office effective the date after his discharge and informing him that he would enter on active duty on the same date to preclude a break in continuous active service.

9.  A review of the applicant's records indicates that Orders A-06-002187 were voided; however, the date that the orders were voided is not reflected in the available records.

10.  Orders 44-14 were published on 6 March 1985 by Headquarters, Walter Reed Army Medical Center ordering the applicant on a permanent change of station move to Eisenhower Army Medical Center, Fort Gordon, Georgia.  These orders were subsequently amended to reflect that the applicant was awarded
5 years and 17 days of constructive service credit for active duty grade determination.

11.  The applicant was awarded his medical degree by USUHS on 18 May 1985. 

12.  A DA Form 5074-R (Record of Award of Entry Grade Credit (Medical and Dental Officers)) shows the applicant was awarded 4 years of constructive service credit for his medical degree (location of academic institution - USUHS) and 1 year and 17 days of credit in excess of that required for grade, for the purpose of determining his entry rank/grade only.  

13.  The applicant's records show that from the time of his REFRAD on 10 July 1981, he remained a member of the USAR until he executed an Oath of Office in the rank of captain in the RA on 12 July 1985.

14.  He was promoted to the rank of major on 1 May 1990.

15.  On 4 October 1991, the applicant was honorably discharged under the provisions of Army Regulation 635-120, chapter 3 due to unqualified resignation. The DD Form 214 that he was furnished shows that he had 6 years, 4 months, and 17 days of net active service this period.

16.  Title 10, U. S. Code, section 2114(b) states, in part, the service credit exclusions specified in section 2126 of this Title shall apply to USUHS students covered by this section.
17.  Title 10, U. S. Code, section 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)

18.  Department of Defense Financial Management Regulation, Volume 7B, Chapter 1, Subsection 010301.B. provides that crediting of constructive service for medical and dental officers or an internship is not authorized after September 14, 1981, unless a member was already enrolled in such a program and later graduated and was commissioned as a medical or dental officer.  However, post September 14, 1981, time is creditable in computing retired pay provided the officer is retirement eligible.  Service creditable in computing retired pay should include time an officer served in the Uniformed Services University of Health Sciences (USUHS).  For an officer of the Medical Corps or Dental Corps of the Army or Navy, an officer of the Air Force designated as a medical or dental officer or an officer of the Public Health Service commissioned as a medical or dental officer, credit actual time served in the program.  Any credit otherwise accrued during the same period by reason of Reserve membership would not be used in determining the multiplier for computing retired pay.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be granted active duty credit for retirement for the time he spent as a student at the USUHS.

2.  His contentions have been noted.  However, in accordance with the governing statutes, the time that he spent as a student at the USUHS is creditable service only in computing retired pay providing that he is retirement eligible.  Title 10,    U. S. Code, sections 2114(b) and 2126(a) specifically state that, except as provided in subsection (b) (which pertains to a nonregular retirement), service performed while a USUHS student 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 of Title 37.

3.  Since there is no evidence in the available record nor has the applicant provided any evidence that shows that he is retirement eligible, there is insufficient evidence that would warrant crediting him with his service while a USUHS student for retired pay purposes.
6.  In order to justify correction of a military record the applicant must show 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.

7.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20080017821



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080017821



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1