BOARD DATE:	  26 August 2009

		DOCKET NUMBER:  AR20090004993 


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, reconsideration of his earlier petition requesting his retired pay be computed using the final base pay method as opposed to the high three system and that he be provided all back retired pay due as a result. 

2.  The applicant states, in effect, that his original period in the Delayed Entry Program (DEP) should have been considered in establishing his DIEMS (Date Initially Entered Active Duty), which should result in a correction of his DIEMS to 24 March 1980.  He claims he signed a DEP contract on 24 March 1980, was enrolled in the Reserve Officers’ Training Corps (ROTC) program on 22 August 1980, and enlisted in the South Carolina Army National Guard (SCARNG) on 
23 September 1980.  He completed basic combat and advanced individual training at Fort Benning, Georgia from June 1981 through August 1981, was engaged in military service in the summers of 1982 and 1983, and was commissioned on 12 May 1984.   

3.  The applicant further states that he was never warned by recruiting personnel that his service was contingent on his ability to produce documents in the future to memorialize his service at a future date.  He presumed then and continues to presume that his DEP contract was forwarded to his records and that the Army had custody of his records and should be held responsible to fulfill its obligation to account for those records.  

4.  The applicant further claims that his Defense Finance and Accounting Service (DFAS) pay records initially reflected his retirement plan was that of the “Final Pay” and that for unknown reasons, this was charged to the “High 3” plan.  He indicates that at the time of his retirement, he presumed that the pertinent record was among his papers at his home in Georgia and that he would be able to retrieve it from his boxes; however, upon return to New Orleans, Louisiana, where his spouse was located while he was deployed to Iraq, he determined that this record as well as boxes of other records and/or personal effects were destroyed in the flood.  

5.  The applicant argues that the original Board conclusions were wrong and the Army has been derelict in its duty by losing, misplacing, and/or failing to diligently search for the appropriate records.  The record is in error because of this dereliction and this error is causing an injustice.  The Board reinforces this injustice by making it his obligation to produce the document.  He concludes by reiterating his request that his records should be corrected to show his DIEMS date as 24 March 1980 and his retirement plan as “Final Pay.” 

6.  The applicant provides the following documents in support of his application:  National Personnel Records Center (NPRC) Letter, dated 17 August 2007; College Transcripts, dated 12 May 1984; Retirement Memorandum, dated 
13 August 2005; DD Form 93 (Record of Emergency Date); SGLV Form 8286 (Service Member’s Group Life Insurance Election and Certificate); DD Form 1299 (Application for Shipment and/or Storage of Personnel Property); United Services Automobile Association Letter, dated 27 August 2007; Stewart Title of Louisiana Letter, dated 6 September 1995; Leave and Earnings Statements (LES); NGB Form 23 (Army National Guard Retirement Credits Record); Individual Infantry Training Diploma, dated 19 August 1981; Damaged House and Personal Property Photographs; and Shipping Invoice, dated 19 June 2001.

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 Army Board for Correction of Military Records (ABCMR) in Docket Number AR20070014194, on 21 February 2008.

2.  During its original review of the applicant's case, the Board concluded there was insufficient evidence to show the applicant had entered into an enlistment contract prior to 23 September 1980, at which time he enlisted in the South Carolina Army National Guard (SCARNG), and as a result his request was denied. 

3.  The applicant provides a self-authored statement and the documents he outlines in this statement as new evidence and argument.  These documents were not reviewed by the ABCMR during its original review and, therefore, are considered new evidence which warrants consideration by the Board.

4.  The applicant’s record shows he completed his secondary education on 2 June 1980 and was admitted to the Citadel (The Military College of South Carolina) in Charleston, South Carolina on 22 August 1980.

5.  The applicant’s Official Military Personnel File (OMPF) contains a DD Form 4 (Enlistment/Reenlistment-Armed Forces of the United States) which shows he enlisted in the SCARNG on 23 September 1980, for a period of 6 years 
in the pay grade of private/E-2.  Item 9 (Previous Military Service upon Enlistment/Reenlistment) of his DD Form 4 contains the entry "00 00 00" and 
his OMPF is void of any previously-entered into enlistment contracts for the 
United States Army Reserve (USAR) DEP or any other military service component.  

6.  On 19 September 1983, the applicant executed a DA Form 61 (Application for Appointment as a Commissioned Officer) indicating he desired a Regular Army commission.  Item 27 (Active Military Service) contains the entry "NONE" and item 28 (Reserve or NG Service) contains the entry "SCARNG – 23 September 1980 – Present."  Item 39 (Army ROTC) contains an entry showing he attended the basic ROTC program from August 1980 through May 1982, and the advanced ROTC program from August 1982 through May 1984.  

7.  On 13 April 1984, the applicant was tendered an appointment in the Regular Army in the rank of a second lieutenant.  On 12 May 1984, the applicant executed an oath of office and entered active duty on the same date.  

8.  The Service Computation for Retirement completed during the applicant's retirement processing lists his DIEMS as 23 September 1980.  A Reserve Personnel Accounting System (RPAS) ARPC Form 249-E on file in his OMPF confirms he began his first period of service on 23 September 1980, upon his enlistment in the SCARNG.  

9.  On 31 May 2006, the applicant was honorably separated under the provisions of paragraph 6-14c (1), Army Regulation 600-8-24, by reason of sufficient service for retirement.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at that time shows he completed a total of 22 years, 
4 months, and 14 days of active military service, and that he held the rank of lieutenant colonel (LTC).  

10.  The applicant provides LES's for March and August 2001, which listed his DIEMS date as 24 March 1980, and his retirement plan as "Final Pay."  He also provides an LES for September 2001, which lists his DIEMS as 4 June 1982, and his retirement plan as "High 3."  In addition, he provides an LES for August 2005, which lists his DIEMS as 23 September 1980, and his retirement plan as
"High 3."    

11.  Title 10, U.S. Code (USC), section 1406 states that the retired pay base of any person entitled to retired pay under section 3911 (retirement of a commissioned officer for length of service) who first became a member of a uniformed service before 8 September 1980 is computed based upon the monthly basic pay of the member's retired grade (Final Pay).  

12.  Title 10, USC, section 1407(a) states that the retired pay of any person entitled to that pay who first became a member of a uniformed service after 7 September 1980 is computed using the retired pay base determined under this section.  Subsection 1407(b) states that, except as provided for in subsection 1407(f) (pertaining to certain enlisted members), the retired pay base of a person under this section is the person's high-three average (High Three) determined under subsection (c) (Regular service) or (d) (non-Regular service). 

13.  Title 10, USC, subsection 1407(c) states that the general rule is the high-three average of a member entitled to retired pay under any provision of law other than section 1204 (members on active duty for 30 days or less or on inactive-duty training: retirement), 1205 (members on active duty for 30 days or less or on inactive-duty training: temporary disabled retired list), or 12731 (non-Regular retirement) of this title is the amount equal to the total of monthly basic pay to which the member was entitled for the 36 months (whether or not consecutive) out of all the months of active service of the member for which the monthly basic pay to which the members was entitled was the highest, divided by 36.

14.  Military Personnel (MILPER) Message Number 03-102, dated 26 February 2003, Subject: DIEMS Date Accuracy announced an HRC initiative to conduct an Army accuracy scrub to validate DIEM's 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.  It further stated, in pertinent part, that the DIEMS for ROTC cadets would be the date they entered a Scholarship Contract or the date they began the ROTC advanced course, whichever is earlier; and that members with a DIEMS date prior to 8 September 1980 are under the Final Pay Retirement Plan.  

15.  MILPER Message Number 03-103, Subject:  DIEMS Date Accuracy, stated that the DIEMS is 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.  The DIEMS date is used solely to indicate which retirement plan a member is under.  

16.  Army Regulation 15-185 (Army Board for Correction of Military Records) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant’s request for the correction of a military record.  It states, in pertinent part, that the ABCMR members will review all applications that are properly before them to determine the existence of error or injustice and direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record.  The ABCMR will decide cases on the evidence of record.  It is not an investigative body.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

17.  The Army defines the preponderance of evidence as factual information that tends to prove one side of a disputed fact by outweighing the evidence on the other side.  Preponderance does not necessarily mean a greater number of witnesses or a greater mass of evidence; rather, the term means a superiority of evidence on one side or the other of a disputed fact.  The term requires consideration of the quality rather than the quantity of the evidence. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his records should be corrected to show his DIEMS date as 24 March 1980 vice 23 September 1980 and that his retirement plan be changed from "High Three" to "Final Pay" was carefully considered.  However, there is insufficient evidence to support this claim. 

2.  By regulation, the DIEMS date is the earliest date of enlistment, induction, or appointment in a Regular or Reserve component of a uniformed service as a commissioned officer, warrant officer, or enlisted member.  In this case, the evidence of record shows the applicant first enlisted in a Regular or Reserve component on 23 September 1980, when he enlisted in the SCARNG.  This fact is supported by various documents and records on file in his OMPF, which include his initial DD Form 4, an RPAS statement, various other documents completed at the time of his initial appointment, and the final statement of service completed during his retirement processing.   

3.  Further, although the applicant claims he signed a DEP contract in March 1980, in his senior year of high school, there is absolutely no documentary evidence of record to support this claim.  Even his application for appointment did not mention any service prior to his enlistment in the SCARNG on 23 September 1980.  In addition, even though he entered the Citadel and ROTC program in August 1980, this did not constitute a military contract or commitment.  By regulation, the DIEMS date for ROTC cadets will be the date they entered a Scholarship Contract or the date they began the ROTC advanced course, whichever is earlier.  In this case, there is no indication that the applicant entered an ROTC scholarship contract or began the ROTC advanced course prior to the date of his SCARNG enlistment.  As a result, there is an insufficient evidentiary basis to support a change to his DIEMS date or retirement plan.  

4.  Notwithstanding the applicant's assertions to the contrary, the Board is not an investigative body and begins it consideration of each case with a presumption that what the Army did is correct, it is the applicant's burden to prove otherwise.  In this case, the evidence of record and independent evidence provided by the applicant fails to corroborate his claim that he entered into a DEP contract on 
24 March 1980.  Therefore, it must be presumed that the 23 September 1980 entry date documented in his records and in an enlistment contract is his correct initial entry date.  Therefore, there is an insufficient evidentiary basis to support granting the requested relief. 

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 or support amendment of the original Board decision in this case. 

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 to amend the decision of the ABCMR set forth in Docket Number AR20070014194, dated 21 February 2008.



      _______ _   __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)                                         AR20090004993



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ABCMR Record of Proceedings (cont)                                         AR20090004993



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