IN THE CASE OF:	  

		BOARD DATE:	  11 March 2010

		DOCKET NUMBER:  AR20090009180 


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 correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to reflect in block 17c (Date of Entry) that he entered active duty on 2 July 1962.

2.  The applicant states, in effect, that his DD Form 214 incorrectly reflects that he entered active duty on 23 July 1970 and that it should reflect 2 July 1962, the date he entered the United States Military Academy (USMA) at West Point and remained there until he was commissioned as a second lieutenant.

3.  The applicant provides a copy of his DD Form 214; pages from 38 USC (Title 38, U.S. Code which outlines the role of Veterans’ Benefits in the United States Code) Section 101; and 38 CFR (Code of Federal Regulation - Veterans) Section 3.6 defining active duty for service academy cadets.

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 entered the USMA on 2 July 1962 and graduated on 7 June 1966.  He was commissioned with a medical waiver for hearing loss as a Regular Army (RA) second lieutenant on 8 June 1966 and served on active duty as a military intelligence officer until he permanently retired in the rank of captain by reason of physical disability (40% hearing loss) on 23 July 1970.

3.  His DD Form 214 issued at the time of his retirement reflects he entered active duty on 8 June 1966 and that he was retired on 23 July 1970, for a total of 4 years, 1 month, and 16 days of total active service.

4.  The Department of Defense Financial Management Regulation (DODFMR), volume 7, chapter 1, paragraph 0101 prescribes service creditable for pay purposes.  It states that service as a cadet at a military service academy is always creditable service for an enlisted member.  Table 1-1 must be used to determine whether such service is creditable for commissioned and warrant officers.  Table 1-1 states that when a member currently serving as an officer has had service as a cadet in any of the military service academies to which he was appointed after 25 June 1956 and he held no concurrent enlisted and/or Reserve status or had an enlistment contract or period of obligated service that was not terminated, then the period involved was not creditable.

5.  Title 10, U.S. Code, section 971(a) states that the period of service under enlistment or period of obligated service while also performing service as a cadet may not be counted in computing, for any purpose, the length of service of an officer of an armed force.  Section 971(b) states that in computing length of service for any purpose, service as a cadet or midshipman may not be credited to any commissioned officer.

6.  Title 38, U.S. Code outlines the role of Veterans’ Benefits in the United States Code.  The Code of Federal Regulations, CFR Title 38, Pensions, Bonuses and Veterans’ Relief, outlines the regulations pertaining to bonuses and veterans’ support.  CFR 38 is the codification of the permanent rules published in the Federal Register and is updated once a year.




DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his DD Form 214 should be corrected to reflect that he entered active duty on 2 July 1962 when he entered the USMA has been noted and found to lack merit.

2.  In accordance with the applicable laws and regulations in effect at the time the applicant served, active duty service credit was not authorized for commissioned officers.  Accordingly, his DD Form 214 was properly prepared.

3.  The applicant’s contention that the provisions of Title 38, U.S. Code allow him active duty service credit for his time at the USMA has also been noted.  However, the applicant served under Title 10, U.S. Code and the rules that apply under the title in which he served must be applied.

4.  The Department of Veterans Affairs (VA) operates under its own policies and regulations and assigns benefits as it sees fit.  Accordingly, the fact that the VA may credit individuals for service at the USMA does not necessarily demonstrate an error or injustice on the part of the Army.

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.  Therefore, in view of all 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)                                         AR20090009180



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ABCMR Record of Proceedings (cont)                                         AR20090009180



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