IN THE CASE OF:	

		BOARD DATE:	  15 December 2009

		DOCKET NUMBER:  AR20090018144 


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, correction of his retired pay calculation to credit him with a total of 26 years, 6 months, and 1 day of service for retirement.

2.  The applicant states, in effect, his retired pay calculation should be corrected to include his 4 years at the Uniformed Services University of the Health Sciences (USUHS), as was the case with his classmates.

3.  The applicant provides a DOD memorandum, DA memorandum, Defense Finance and Accounting Service (DFAS) retired pay summary, two DD Forms 214 (Certificate of Release or Discharge from Active Duty), and an Officer Record Brief in support of his request.

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's record shows he was appointed as an infantry second lieutenant and entered active duty in that status on 7 June 1978.  On 9 July 1982, he was honorably discharged in the rank of captain by reason of unqualified resignation after completing 4 years, 1 month, and 3 days of active military service.

3.  The applicant's official military personnel file contains a DA Form 1059 (Service School Academic Evaluation Report) that shows he entered medical school as a student in the USUHS on 16 August 1982.  It also contains a DA Form 1059 and a certificate that confirm he completed his final year of medical school and graduated from the USUHS on 17 May 1986 after attending the USUHS for 3 years, 9 months, and 2 days.  He was appointed as a captain in the Medical Corps (MC).

4.  The applicant's record shows he was promoted to major on 1 October 1988, to lieutenant colonel on 1 October 1994, and to colonel on 1 October 2001.

5.  On 30 October 2003, U.S. Army North Atlantic Treaty Organization Orders 303-01 directed the applicant's retirement from active service on 30 September 2004 and placement on the Retired List in the rank of colonel on 1 October 2004.  These orders also show he completed a total of 22 years, 6 months, and 1 day of active military service (voluntary retirement) and 26 years, 6 months, and 1 day for basic pay.

6.  On 30 September 2004, the applicant was honorably retired in the rank of colonel.  The DD Form 214 he was issued at the time shows he completed a total of 22 years, 6 months, and 1 day of active military service and 4 years of prior inactive military service.

7.  A DFAS retired pay summary provided by the applicant shows his retired pay percentage was based on completion of 22 years, 6 months, and 1 day of active military service and his basic (longevity) pay rate was based on completion of 26 years, 6 months, and 1 day of military service.

8.  A DOD memorandum provided by the applicant, dated 1 July 2002, indicates that a member who is a medical student at the USUHS will serve on active duty in the grade O-1 and that this service will be credited under any provision of law based on active service unless such service is explicitly excluded.  It further states that, consequently, years of service at the USUHS as a medical student are creditable in computing retired pay.

9.  DOD Financial Management Regulation, Volume 7B, prescribes military policies and procedures for retired pay.  Paragraph 010301 provides guidance on service creditable for retired pay percentage purposes.  Subparagraph B-2 provides guidance on crediting constructive service for medical and dental officers.  It states, in pertinent part, that service creditable in computing retired pay should include time an officer served in the USUHS.  Example:  An O-6 with 20 years and 6 months of active service under Title 37, U.S. Code, section 205, (excludes time at USUHS) is receiving basic pay for an O-6 over 20 years.  If this member served 4 years and 6 months at the USUHS, then upon retirement, the member is to receive retired pay computed at 62.5 percent of basic pay as an 
O-6.  The 62.5 percent is computed as 2.5 percent times 25 (20.5 plus 4.5) years of service as this computation will include the USUHS time.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his time in the USUHS should have been credited in his retired pay percentage calculation was carefully considered and found to have merit.

2.  The evidence of record confirms the applicant completed 22 years, 6 months, and 1 day of active military service and that his retired pay percentage calculation was based on that total of active duty service.  It also shows that he attended the USUHS for 3 years, 9 months, and 2 days.

3.  By law and regulation, time served at the USUHS while not creditable as actual active duty service, is creditable as constructive service for retired pay percentage calculations.  Therefore, the time the applicant served at the USUHS should be used in the retired pay percentage calculation upon which his retired pay is based.  Therefore, it would be appropriate to credit the applicant with the 3 years, 9 months, and 2 days he served at the USUHS and to correct his retired pay percentage calculation by showing it is based on 26 years, 3 months, and 3 days of creditable service.  It would also be appropriate to provide him any back retired pay due as a result of this change.

BOARD VOTE:

___X____  ___X___  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing he received 3 years, 9 months, and 3 days of constructive service credit for the time he served at the USUHS; showing that his retired pay percentage calculation was based on 26 years, 3 months, and 3 days of creditable service; and by providing him all back retired pay due as a result of this correction.



      ___________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)                                         AR20090018144



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ABCMR Record of Proceedings (cont)                                         AR20090018144



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