IN THE CASE OF:	

		BOARD DATE:	13 August 2009    

		DOCKET NUMBER:  AR20090003392 


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 his 1995 DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to reflect 182 days of prior active Federal service, that his last duty station be corrected to reflect Walter Reed Army Medical Center (WRAMC) and, in effect, that his VHA (Variable Housing Allowance) entitlement be recomputed based on the WRAMC location.

2.  The applicant states, in effect, that he completed a total of 182 days of active Federal service which was not reflected on his 1995 DD Form 214.  He notes he was on active duty for 45 days in the summer of 1985 undergoing a basic officer course.  He was also on active duty for 45 days in the summer of 1986 while attending the Columbia University, College of Physicians and Surgeons Medical School and that he was on active duty for 92 days between July and October 1987 at WRAMC and WRAIR (Walter Reed Army Institute of Research).  He states the absence of this information on his DD Form 214 impacts his lawful treatment with federal agencies and with respect to “leave earning capacity.”

3.  The applicant also states that his last duty station was at WRAMC and not Fort Meade, Maryland as reflected on his DD Form 214.  He states he left Fort Meade in November 1994 and was discharged at WRAMC.  He notes that the error affected his Leave and Earning Statement (LES).  He states his VHA was based on the Fort Meade zip code and not the WRAMC zip code.   



4.  The applicant indicated that he was providing a copy of an evaluation report which mentioned his “pending” move to WRAMC.  However, that report was not included with documents when his application arrived at the Board.  The report is, however, in his Official Military Personnel File.

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.  Records available to the Board indicate the applicant completed a Bachelor of Arts Degree in Public Health at the University of Rochester, New York in May 1984.  He was appointed as a second lieutenant in the United States Army Reserve (USAR), unassigned, and he executed a DA Form 71 (Oath of Office-Military Personnel) on 1 October 1984 as a member of the US Army Health Professions Scholarship Program. 

3.  Between September 1984 and May 1988 the applicant attended the Columbia University College of Physicians and Surgeons in New York and was awarded a General Medical Degree.

4.  On 14 March 1988, he was appointed a Medical Corps Captain in the USAR and accepted that appointment on 18 May 1988.

5.  On 21 June 1988, the applicant was ordered to active duty to fulfill his active duty requirements under the US Army Health Professions Scholarship Program and to continue his medical education. 

6.  While Section VI (Military Education) on the applicant’s Officer Record Brief notes completion of the Army Medical Department (AMEDD) Officer Basic Course in 1985, there are no documents in the available records which confirm any periods of active duty or other associated military service between his initial USAR appointment in October 1984 and his entrance on active duty in June 1988.
7.  Upon his entry on active duty in June 1988 he was assigned to Brooke Army Medical Center.  In May 1990 he was reassigned to WRAIR and in September 1991 to Aberdeen Proving Ground, Maryland.  

8.  In July 1993, the applicant was reassigned to the United States Army Medical Department Activity at Fort George G. Meade, Maryland.  He was subsequently attached to WRAMC in November 1994 but there is no indication he was ever reassigned to that activity and as such Fort Meade remained the applicant’s permanent duty assignment.  The applicant’s final performance evaluation report, rendered in December 1995 with an ending date of 30 November 1995 confirms the applicant was performing duties as an Occupational Medicine Physician at WRAMC.

9.  On 30 November 1995, the applicant was released from active duty at the completion of his required active service.  His DD Form 214 indicates he completed 7 years, 5 months, and 10 days of active service (item 12a), with 
1 month and 2 days of prior inactive service which would account for the delay between the acceptance of his appointment as a captain in the USAR on 18 May 1988 and his entrance on active duty on 21 May 1988.  Item 12d (total prior active service) reflects “00 00 00.”

10.  The applicant’s DD Form 214 indicates his last duty assignment (item 8a) was with the United States Army Medical Activity, Fort Meade, Maryland and that he was separated by the Transition Center at Fort Meade (item 8b).  The applicant authenticated the accuracy of the information on the DD Form 214.

11.  A July 1995 LES, contained in the applicant’s file reflects the statement “VHA based on w/dep, zip 20755” in the remarks section.  The zip code for Fort Meade, MD was 29755 while the zip code for WRAMC was 20307.  At the time of the applicant’s separation, his family was residing in Clarksville, MD at zip code 21029.  The LES indicated the applicant was receiving Basic Allowance for Quarters at a rate of $705.90 per month and VHA at a rate of $453.84.  Other than the 1995 LES there were no additional pay records available to the Board confirming entitlement to additional housing allowances.

12.  Army Regulation 635-5 (Separation Documents), in effect at the time, stated the following:

	a.  DD Forms 214 were issued to USAR personnel separated after completing 90 or more days of continuous active duty for training (ADT) or after completing initial active duty for training which resulted in the award of a military occupational specialty, even though the active duty was less than 90 days.

   b.  Item 8a (last duty assignment and major command) will reflect the last unit of assignment.
   
   c.  Item 8b (station where separated) will reflect the station or installation and state where the Soldier is separated. 
   
   d.  Item 12d (total prior active service) will reflect the total amount of prior active military service less lost time, if any.  If there is no prior active service the entry will be “00 00 00.”

13.  Title 10, U.S. Code, chapter 105 (Armed Forces Health Professions Financial Assistance programs), section 2126 (members of the program: service credit) subsection 2126a states service performed while a member of the program shall not be counted (1) 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 (2) in computing years of service creditable under section 205 of Title 37, U.S. Code.

14.  Information received from the proponent of Army Regulation 635-5 stated that while not specifically specified in the regulation in effect at the time, the intent was always that service not creditable for active Federal retirement purposes would not be captured on the DD Form 214.
   
15.  Until 1997 housing allowances for personnel living in the continental United States included a Basic Allowance for Quarters (BAQ) and a VHA.  These allowances are nontaxable and vary according to the member’s pay grade and whether or not they have dependents.  The BAQ rates are set annually, normally linked to the annual military pay raise.  The VHA rates are also set annually for each geographical location, but by a much different method.  Each year the Department of Defense gathers information on median expenditures by military families for housing in each military housing area, defined to be the geographical area that encompasses all public and private housing within 30 miles, within a
60 minute commute, of a military installation.  This is done through the use of an annual survey of military personnel living in private-section housing.  The Department of Defense sets the VHA rates for each pay grade and dependency status to the median out-of-pocket cost (difference between local median housing expenditures and a member’s BAQ plus VHA).  The BAQ and VHA received by the military members normally covered about 80 percent of what the typical military family spends for housing rent (mortgage for homeowners) and utilities the private sector pays.  The BAQ, the largest allowance, covered roughly 60 percent, while the VHA covered roughly 20 percent.

16.  According to information contained in the Department of Defense Pay Regulation, Volume 7A, then in effect, the rate payable for housing allowances was based on the Soldier’s permanent duty station unless the Soldier has a Secretarial waiver.

17.  Title 31 U. S. Code, section 3702, also known as the Barring Statute, prohibits the payment of a claim against the Government unless the claim has been received by the Comptroller General within 6 years after the claim accrues.  Among the important public policy considerations behind statutes of limitations, including the 6-year limitation for filing claims contained in this section of Title 31, U. S. Code, is relieving the Government of the need to retain, access, and review old records for the purpose of settling stale claims, which are often difficult to prove or disprove.

DISCUSSION AND CONCLUSIONS:

1.  While the applicant may have accumulated other periods of active duty those periods would have occurred while he was undergoing medical training as part of the US Army Health Professions Scholarship Program.  As such, those periods of active duty would not have been recorded on the DD Form 214 as they were not considered creditable for active Federal service purposes.  The entry in item 12d on the applicant’s 1995 DD Form 214 is therefore correct and no error or injustice exists.

2.  Although the applicant may have been performing duties at WRAMC at the time of his separation from active in 1995, the evidence available to the Board indicates his “permanent” duty station remained as Fort Meade and that he was only “attached” to WRAMC.  The evidence also confirms the applicant was separated at Fort Meade by the Transition Center located at that installation.  As such, the information in item 8a and 8b on the applicant’s 1995 DD Form is correctly recorded.

3.  The applicant’s entitlement to VHA would have been based on his permanent duty station, which was Fort Meade, MD.  Additionally, there is no evidence that the applicant is entitled to any additional housing allowance payments and he has provided no evidence to the contrary.  No pay records were available for review.  There is simply no evidence available to support the applicant’s request.  The statute of limitations for a claim against the Government expired 6 years after the date of the applicant's discharge.



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 the aforementioned requirement.

5.  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.




      _______ _   _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)                                         AR20090003392



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ABCMR Record of Proceedings (cont)                                         AR20090003392



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