IN THE CASE OF:	  

		BOARD DATE:	           27 August 2009

		DOCKET NUMBER:  AR20090002028 


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, that his Date Initially Entered Military Service (DIEMS) be changed from 6 December 1980 to 22 March 1980.

2.  The applicant states, in effect, that the constructive service credit he was awarded and his application date for active service were not considered when his DIEMS was previously adjusted from 6 January 1981 to 6 December 1980.  He states that his DIEMS should be a date on or before 22 March 1980, the date he requested entrance on active duty.

3.  The applicant provides the following documents in support of his application:  electronic mail messages; DFAS Forms 702 (Defense Finance and Accounting Service Military Leave and Earnings Statement (LES)), dated May 2007 and January 2009; facsimile (fax) cover sheet; self-authored memorandum, dated 24 August 2007; DA Form 160 (Application for Active Duty); DA Form 61 (Application for Appointment); appointment letter; active duty orders; and DD Form 220 (Active Duty Report).

CONSIDERATION OF EVIDENCE:

1.  The applicant's official military personnel file (OMPF) contains a United States Army Reserve Components Personnel and Administration Center (RCPAC) letter, dated 6 December 1980, which shows the applicant was appointed as a Reserve commissioned officer in the rank of first lieutenant (1LT) in the Judge Advocate General's Corps effective upon his acceptance.  It also shows that he was credited with 3 years of constructive service credit.
2.  The applicant's OMPF contains RCPAC Orders Number A-12-56712, dated 8 December 1980, which ordered him to active duty effective 11 January 1981 to complete his 3-year active duty obligation.

3.  A DA Form 71 (Oath of Office - Military Personnel) on file shows the applicant swore his oath of office on 6 January 1981.  A DD Form 220 confirms that he was discharged from the United States Army Reserve (USAR) and he entered active duty on 11 January 1981.

4.  On 1 April 2000, the applicant was promoted to the rank of colonel.  His record shows that as of the date of his application to this Board, he was serving as a senior judge with the United States Army Court of Criminal Appeals.

5.  The applicant submits a copy of his May 2007 LES which lists his DIEMS as 6 January 1981, the same date he took his oath of office.  He also provides a copy of his January 2009 LES which lists his DIEMS as 6 December 1980, the date of his initial appointment letter.

6.  Military Personnel Message Number 03-102, dated 26 February 2003, subject:  DIEMS Date Accuracy, announced a Human Resources Command initiative to conduct an Army accuracy scrub to validate DIEMS dates.  DIEMS was defined as the date an individual was initially enlisted, inducted, or appointed in a Regular or Reserve Component of a Uniformed Service as a commissioned officer, warrant officer, or enlisted member.  It further indicated that "breaks in service would not affect the date someone first became a member."  It further indicated that the DIEMS of members of the Delayed Entry Program (DEP) would be the date the enlistment contract was signed regardless of when the Soldier entered active duty.  Members who first entered uniformed or military service through the DEP, the United State Military Academy, an advanced Reserve Officers' Training Corps program, or a Reserve Federally recognized National Guard component will have a DIEMS that matches the date they entered those programs.  There are no provisions for assigning a DIEMS date based on constructive service credit. 

7.  Department of Defense (DOD) Instruction 1312.03 prescribes DOD policy on service credit for non-health professions commissioned officers (constructive service credit).  It states, in pertinent part, that it is DOD policy that the award of service credit to any person appointed, assigned, or designated as a commissioned officer in an officer category shall be equitably determined to establish an appropriate appointment grade and date of rank relative to other officers in the same competitive category.  In effect, constructive service credit is used only for entry grade and date of rank purposes.  There are no provisions for applying constructive service as creditable for pay and/or retirement purposes.
8.  The DOD Financial Management Regulation (DODFMR), Volume 7A, provides guidance on military pay.  Paragraph 010102 provides guidance on service that is not creditable and included in this non-creditable service is constructive time authorized for determining grade and eligibility for promotion.  Volume 7B contains guidance on retirement entitlements.  Paragraph 010109 outlines service not creditable for retirement which includes constructive service credit awarded to members of the Chaplain and Judge Advocate General's Corps.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his DIEMS should be changed to 22 March 1980 or earlier to give him credit for the 3 years of constructive service credit he was awarded in conjunction with his Reserve commission 1LT appointment has been carefully considered.  However, by regulation, constructive service credit is applicable to determine entry grade and date of rank upon appointment and is not creditable service for pay or for retirement. 

2.  The evidence of record confirms that the applicant was appointed as a 1LT in the USAR on 6 December 1980 and swore his oath of office on 6 January 1981.  It also shows that he was awarded 3 years of constructive service credit in conjunction with his appointment.

3.  By regulation, DIEMS was defined as the date an individual was initially enlisted, inducted, or appointed in a Regular or Reserve Component of a Uniformed Service as a commissioned officer, warrant officer, or enlisted member.  DOD policy stipulates that constructive service credit is used to establish an appropriate appointment grade and date of rank relative to other officers in the same competitive category and the DODFMR stipulates that constructive service credit is not creditable for pay or retirement purposes.  In this case, the applicant was initially appointed on 6 December 1980 and was awarded 3 years of constructive service credit in conjunction with his appointment which resulted in his appointment in the grade of 1LT with an appropriate date of rank.  There are no regulatory provisions that provide for crediting his constructive service for pay or retirement purposes that would allow for a further adjustment of his DIEMS.  As a result, there is an insufficient evidentiary basis to support granting the requested relief.

4.  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)                                         AR20090002028



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ABCMR Record of Proceedings (cont)                                         AR20090002028



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