IN THE CASE OF:	  

		BOARD DATE:	  17 December 2009

		DOCKET NUMBER:  AR20090012513 


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 Pay Entry Basic Date (PEBD) to reflect all of his service in the U.S. Army Reserve (USAR).  His current PEBD is 17 February 2005 and he is being paid as a first lieutenant (1LT)/O-2-E with 4 years time in service (TIS).  His PEBD should be corrected to show 17 August 2002 and that he should be paid as an O-2-E with 6 years TIS.  He also requests entitlement to back pay and allowances. 

2.  The applicant states that he was enlisted in the USAR and signed a non-scholarship contract with the Reserve Officers' Training Program (ROTC) under the Simultaneous Membership Program (SMP).  He adds that he was never given an SMP contract to sign; yet, he was told he was SMP but was never discharged from the USAR.  He also states that the Defense Finance and Accounting Service (DFAS) will not credit this time because he did not sign an SMP contract despite showing proof that he performed duties as a Reservist.  He further states that he has submitted multiple pay inquiries to DFAS, started an Inspector General (IG) investigation, and sought help from personnel officials as well as Staff Judge Advocate officials since April 2007.  He concludes that even if the SMP contract was never signed; that is the fault of the unit, not the Soldier.  If a Soldier continues to drill and receive pay and retirement points, then the time should be creditable toward time in service.  

3.  The applicant provides a copy of a DA Form 1506 (Statement of Service For Computation of Length of service for Pay Purposes), dated 16 January 2009; a copy of an email, dated 18 May 2004, from an official at Cornell Army ROTC; a copies of his DD Form 4 (Enlistment/Reenlistment Document), dated 22 May 2003 and 2 November 2001; a copy of Orders 02-218-00009, issued by Headquarters, 77th Regional Support Command (RSC), Fort Totten, NY, on 6 August 2002; a copy of his DA Form 597 (Army Senior ROTC Non-Scholarship Cadet Contract), dated 17 May 2004; a copy of Orders 06-325-00015, issued by Headquarters, U.S. Army Reserve Command, Fort McPherson, GA, on 21 November 2006; a copy of his DA Form 71 (Oath of Office-Military Personnel), dated 21 May 2006; a copy of Orders 255-10-A-2279, issued by Headquarters, U.S. Army Cadet Command, Fort Monroe, VA, on 15 September 2006; a copy of his ARPC Form 249-E (Chronological Statement of Retirement Points), dated 24 February 2009; and a copy of his February 2009 Leave and Earning Statement (LES), in support of his request.

4.  On 10 September 2009, the applicant submitted a copy of his November 2006 LES and another copy of the email, dated 18 May 2004, from the official at Cornell Army ROTC.

5.  On 11 November 2009, the applicant submitted another copy of his DA Form 1506, dated 16 January 2009; another copy of his November 2006 LES; a copy of a letter, dated 4 March 2009, from the North Atlantic Regional Medical Command IG; and a copy of an undated letter from the U.S. Army Human Resources Command (USAHRC), St. Louis, MO, to the applicant's Member of Congress, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the USAR in the rank/grade of private/E-1 for a period of 8 years on 2 November 2001.  He was assigned to the 354th Motor Transportation Battalion, Fort Totten, NY.  However, his records show he was discharged on 6 August 2002 under the provisions of Army Regulation 135-178 (Enlisted Administrative Separations) with an uncharacterized discharge.  There is no indication that he executed an SMP contract with this enlistment.

2.  The applicant's records also show he again enlisted in the USAR for a period of 8 years on 22 May 2003.  His DD Form 4 (Enlistment/Reenlistment Document) shows he enlisted for the alternate training program (ATP) for training in military occupational specialty (MOS) 88M (Motor Transport Operator).  There is no indication in the applicant's records that he enlisted for the SMP program. 

3.  The ATP is an enlistment program under which a member enters initial active duty for training (IADT) to undergo the common basic training program (BT).  On successful completion of BT, the member will be released from IADT.  He or she will return home and commence training with the unit of assignment in a paid drill status.  Within 1 year of the last day of separation from IADT (BT), the member again will enter on IADT to complete advance individual training (AIT) for MOS qualification.  

4.  The applicant's records further show he entered IADT on 5 June 2003, completed BT and was released from ADT on 14 August 2003 to the control of his USAR unit.  He was assigned to the 325th Transportation Company (Medium Truck), Roslindale, MA.

5.  On 17 May 2004, the applicant executed an Army Senior ROTC Nonscholarship Contract.  The DA Form 597 he authenticated shows that he would attend Binghampton University, NY, commencing on 1 August 2004 with a tentative completion date of 15 May 2006 and that the effective date of this contract was 26 August 2004.

6.  On 3 January 2006, Headquarters, 167th Support Group (Corps), Londonderry, CT, published Orders 06-003-00001, directing the applicant's reassignment from his Troop Program Unit (TPU), the 283rd Transportation Company, Fairfield, CT, to another TPU, the 325th Transportation Company, Roslindale, MA, effective 3 January 2006.

7.  On 8 May 2006, Headquarters, 94th Regional Readiness Command (RRC), Fort Devens, MA, published Orders 06-128-00018, directing the applicant's reassignment from his TPU, the 325th Transportation Company, to another TPU, the 94th RRC, Trainee, Transients, Holdees and Students (TTHS), under the provisions of Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers), in MOS 09R (SMP). 

8.  The TTHS account increases unit readiness by removing non-deployable Soldiers from TPU force structure positions. It produces Duty Military Occupational Skill Qualified (DMOSQ) Soldiers available for deployment as needed to fulfill USAR missions.  Soldiers who are non-DMOSQ or otherwise non-deployable are no longer assigned to units.  Instead, they are assigned to the TTHS account.  Soldiers in the TTHS account are no longer the responsibility of individual units, but will be managed by TTHS Managers at the RRC level.  Soldiers continue to drill, but the training may be with a different unit. Once Soldiers are DMOSQ and deployable, they are assigned to their parent or gaining unit.  

9.  On 15 May 2006, Headquarters, U.S. Army Cadet Command, Fort Monroe, VA, published Orders 255-10-A-2279, ordering the applicant to active duty for a period of 3 years, effective 9 October 2006, and assignment to Walter Reed Army Medical Center, Washington, DC.  He was also ordered to attend the Basic Officer Leadership Course (OBLC) at Fort Sam Houston, TX, starting on or about 31 December 2006.  The orders also stated that effective on the date of entry on active duty, he would be appointed in the grade of second lieutenant (2LT) and placed on the active duty list.   

10.  On 21 May 2006, the applicant was awarded a Bachelor of Science in Nursing degree from State University of New York at Binghamton, Binghamton, NY.  

11.  On 21 May 2006, the applicant also executed an oath of office as a 2LT in the USAR and on 9 October 2006, the applicant entered active duty. 

12.  On 16 November 2006, Headquarters, 94th RRC, Fort Devens, MA, published Orders 06-320-00125, directing the applicant's reassignment from the TTHS Account of the 94th RRC to his TPU, the 325th Transportation Company, Roslindale, MA, effective 16 November 2006. 

13.  On 21 November 2006, Headquarters, U.S. Army Reserve Command, Fort McPherson, GA, published Orders 06-325-00015, ordering the applicant's honorable discharge from the USAR, effective 20 May 2006, for the purpose of accepting an appointment as an officer in the Regular Army.

14.  On 5 March 2007, the applicant completed the Nurse Corps OBLC (3 January 2007 to 5 March 2007) at Fort Sam Houston, TX.  He was subsequently promoted to 1LT/O-2 on 9 April 2008.

15.  On 9 November 2009, the applicant was honorably discharged in the rank/grade of 1LT/O-2 under the provisions of Army Regulation 600-8-24 (Officer Transfers or Discharges) for miscellaneous/general reasons.

16.  The applicant submitted the following documentation in support of his request:

	a.  A copy of his February 2009 LES that shows his grade as O-2, his pay date as 17 February 2005, and his years of service as 4.

	b.  A copy of his November 2006 LES that shows his grade as a cadet/E-5, his pay date as 22 May 2003, and his years of service as 3.

	c.  A copy of his DA Form 1506 that shows his active and inactive USAR service as well as his active duty service.  This form credited him with a 1 year, 8 months, and 13 days of creditable service for pay as follows:

		(1)  From 22 May 2003 (date of his enlistment in the USAR) to 2 June 2003 (the day prior to entering IADT), 11 days of inactive service;

		(2)  From 3 June 2003 (date entered IADT) to 14 August 2003 (date released from IADT), 2 months and 12 days of active service;

		(3)  From 15 August 2003 (date after release from IADT) to 25 August 2004 (the date before the effective date of his Senior ROTC/SMP Non-scholarship contract), 1 years and 11 days of inactive service; and

		(4)  From 21 May 2006 (date after completion of his Senior ROTC/SMP Non-scholarship contract and date executed an oath of office) to 8 October 2006 (date prior to entering active duty), 4 months and 18 days.

	d.  A copy of an undated letter, from an official at USAHRC to the applicant's Member of Congress in reply to the Member's inquiry on behalf of the applicant regarding the award of service credit for participation in the ROTC and SMP.  The official stated that it appears the applicant did not complete or sign a contract to become a participant in the ROTC/SMP program and as a result, his office was unable to award any service credit for time spent in the ROTC program.  He also stated that regular and senior ROTC is not considered creditable service as outlined in Department of Defense Financial Management Regulation (DODFMR), Volume 7a, Chapter 1, section 010102, and Army Regulation       140-185 (Training and Retirement Point Credits and Unit Level Strength Accounting Records).  

	e.  An email, dated 18 May 2004, from an official at Cornell Army ROTC, who stated that the applicant had already signed the non-scholarship paperwork and that he was contracted with ROTC.  His unit would change his MOS to 09R which is SMP.  

17.  On 10 December 2009, an official at the North Atlantic Regional Command IG office contacted the case analyst of record and stated that the applicant's case was closed in August 2009 and that he had been notified that there is no indication that he executed an ROTC contract.

18.  Army Regulation 601-210 (Active and Reserve Components Enlistment Program) governs eligibility criteria, policies, and procedures for enlistment and processing of persons into the Regular Army, the USAR, and the Army National Guard for enlistment.  It also provides policy and procedures governing the appointment, reassignment, management, and mobilization of ROTC cadets under the ROTC Simultaneous Membership Program (SMP).  Paragraph 5-21 of this regulation states that an ROTC cadet assigned to the Control Group (ROTC) or participating in the SMP, who desires to enlist in the RA, may enlist if he or she has received clearance from the appropriate professor of military science (PMS) or ROTC region commander.  The DD Form 368 (Request for Conditional Release) is used for this purpose and it must be in possession of the recruiting officials before processing the cadet for enlistment.  The member must obtain a DD Form 368 from the ARNG or USAR unit commander, as well as the appropriate PMS or ROTC region commander, if the cadet is a participant in the SMP.  The member may not have been alerted for order to active duty under a Presidential call-up or a partial or full mobilization, has not been notified of orders directing involuntary order to AD, or is not an ROTC scholarship recipient.

19.  Paragraph 9-14 of Army Regulation 601-210 states that the SMP program is available to qualified non-prior service (NPS) and PS applicants qualified for enlistment in the USAR who meet criteria for enrollment in ROTC Basic/Advanced Course (Military Science (MS) II/MS III/MS IV).  The program guarantees assignment to a TPU in a paid drill status, guarantees simultaneous training as an ROTC cadet and a member of a TPU of the USAR after enrollment in the ROTC program, and accelerated appointment to pay grade E5 on enrollment in the ROTC.  All enlistees must meet the prerequisites before and after enlistment in Army Regulation 145-1 (Mission, Organization, and Training).  It is a voluntary Officer Training program that requires USAR enlisted status for eligibility.  In computing length of service for any purpose, an officer appointed through the ROTC Advanced Course may not be credited with enlisted service for the period covered by his or her training in the ROTC Basic/Advanced Course (MS II/MS III/MS IV) (Title 10, U.S. Code, section 2106(c)).  This includes service performed as a cadet under the ROTC/SMP.  Except for recipients of the Reserve Forces Duty Scholarship Program who are required to participate in the ROTC/SMP, cadets receiving financial assistance under the Army ROTC scholarship program are not eligible to participate in the ROTC/SMP.  A cadet in the ROTC/SMP may apply for an ROTC scholarship; however, the cadet will be transferred from the TPU to Control Group (ROTC) prior to acceptance of such scholarship, except as stipulated. 

20.  Paragraph 9-14(k) of this regulation states that a Soldier assigned to a TPU becomes a potential participant in ROTC/SMP when he or she executes the SMP Agreement (DA Form 4824–R), and the Agreement has been authenticated by the TPU commander.  The agreement will be prepared with an original, and three copies, and distributed as follows:  The original, together with a cover memorandum requesting it be filed in the Soldier’s official military personnel file (OMPF), will be sent to the U.S. Human Resources Command-STL, St. Louis, MO; a copy will be attached as an addendum to the Soldier’s current DA Form 3540 (Certificate and Acknowledgement of US. Army Reserve Service Requirements and Methods of Fulfillment) series and retained in the Soldier’s military personnel records jacket (MPRJ); a copy will be provided to the Soldier; and a copy will be provided to the appropriate Reserve command.  A Soldier assigned to a TPU becomes a participant in ROTC/SMP when he or she enrolls in the ROTC Basic/Advanced Course (MS III/MS IV) and remains assigned to a TPU in an officer-trainee position.  If not previously accomplished, the cadet must execute the SMP Agreement.  The Agreement is distributed in the same manner as shown above.  When a Soldier assigned to a TPU applies for enrollment in the ROTC Basic/Advanced Course (MS III/MS IV) to participate in the ROTC/SMP, the TPU commander will provide the appropriate PMS with a reproduced copy of the Soldier’s current enlistment agreement (DD Form 4 series).

21.  DODFMR, Volume 7, Chapter 1, states that the several military pay and personnel systems use a variety of dates to determine various entitlements. Among them is the date that denotes how much service a member has for the purpose of determining longevity pay rates.  The Army refers to this as the "pay entry basic date."  This chapter will refer to this data element as the "basic pay date," which is defined as reflecting all service that is creditable towards longevity.  For most members who enter and serve on active duty without a break in service, the basic pay date is the date the member enters active or inactive service.  If, however, there is a break in service, then the time between periods of service usually is not included.  Also, there are statutory periods when service in a particular component may not be counted.  Conversely, there are periods for which some members are given constructive service, even though they were not actually serving on active or inactive duty.  Section 010102 states that prior provisions of law excluded the SMP from creditable service for commissioned officers effective 13 October 1964.  Public Law 104-201, section 207, 23 September 1996, amended these provisions to provide service credit retroactive to 1 August 1979.  These amendments, as referenced in subparagraph 010101.D.10, resulted in no increase in pay, retired pay, or retainer pay before the date of enactment.  Service in the program for enlisted members who retain that status remains creditable under all provisions.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his pay records should be corrected to show his PEBD as 17 August 2002 instead of 17 February 2005, that he should be paid as a 1LT/O-2-E with 6 years TIS instead of 4 years TIS, and entitlement to back pay and allowances. 

2.  The evidence of record shows that the applicant initially enlisted in the USAR on 2 November 2001 and was discharged on 6 August 2002.  There is no evidence that he executed an SMP agreement in connection with this enlistment. 

3.  After a break in service, he again enlisted in the USAR on 22 May 2003 for training in MOS 88M. He subsequently entered IADT on 5 June 2003, completed BT, and was released from IADT on 14 August 2003 to the control of his USAR unit.  He completed 70 days of active service during this period.  Again, there is no evidence in the available records and the applicant did not provide any evidence that shows he executed an SMP agreement in connection with his second enlistment contract.

4.  The applicant subsequently executed an Army Senior ROTC non-scholarship cadet contract on 1 August 2004, to be effective on 26 August 2004.  He completed his education and executed an oath of office on 21 May 2006.  He then entered active duty on 8 October 2006.  

5.  The applicant's PEBD is currently shown on his LES as 17 May 2005.  Time spent in the senior RORC does not count for PEBD purposes.  Therefore, the applicant's original PEBD, which was his enlistment date on 22 May 2003, required an adjustment.  The period of 1 year, 8 months, and 25 days, spent in senior ROTC from 26 August 2004 to 20 May 2006, was added to his PEB to create an adjusted PEB of 17 May 2005 which is correctly shown on his LES.  There is neither an error nor an injustice.

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 did not submit evidence that would satisfy this requirement.  Therefore, there is insufficient evidence to grant him the requested relief 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 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.
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ABCMR Record of Proceedings (cont)                                         AR20090012513



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