IN THE CASE OF:	  

		BOARD DATE:	  17 February 2011

		DOCKET NUMBER:  AR20100013229 


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, that his records be corrected to credit him for being in the Simultaneous Membership Program (SMP) from October 1985 to 4 June 1987 and to adjust his pay records accordingly.

2.  The applicant states his records should be corrected to credit his time served in the SMP.  Because his service was not counted, it resulted in a loss of pay based on almost 2 additional years of service.  The affected pay periods include:

	a.  4 June 1987 (end of SMP program),

	b.  9 December 1990 through 1 April 2000 (Active Duty Service),

	c.  1 May 2000 through 7 May 2005 (Army Reserve Duty),

	d.  8 May 2005 through 10 September 2006 (Active Duty Deployment to Iraq), and

	e.  11 September 2006 through 15 December 2009 (Army Reserve Duty).

3.  The applicant provides:

* DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States), dated 30 November 1984
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 27 September 1985
* Joint Uniform Military Pay System – Army Leave and Earnings Statements (LES's) for the months of July 1985 through June 1987
* Orders 14-5, U.S. Army Third Reserve Officers' Training Corps (ROTC) Region, Senior Program, dated 19 May 1987
* Orders 93-6, U.S. Army Third ROTC Region, dated 27 May 1987
* DA Form 71 (Oath of Office – Military Personnel), dated 5 June 1987
* memorandum, U.S. Army Third ROTC Region, dated 5 June 1987, subject:  Appointment as a Reserve Commissioned Officer of the Army
* DA Form 1506 (Statement of Service for Computation of Length of Service for Pay Purposes), dated 25 June 1990
* Orders A-06-005303, U.S. Army Reserve (USAR) Personnel Center, dated 4 June 1990
* Orders 073-0175, U.S. Combined Arms Support Command (CASC) and Fort Lee, dated 13 March 2000
* amendment to Orders 073-0175, U.S. CASC, dated 28 March 2000
* DD Form 214 for the period ending 1 April 2000
* memorandum, USAR Personnel Center, dated 1 October 2001, subject:  Promotion as a Reserve Commissioned Officer of the Army
* Orders 05-118-00012, 80th Division Institutional Training, dated 28 April 2005
* Orders 210-112, Camp Atterbury, Indiana, dated 29 July 2005
* Orders 212-337, Camp Atterbury, dated 31 July 2006
* Orders 212-433, Camp Atterbury, dated 31 July 2006
* DD Form 214 for the period ending 10 September 2006
* Orders 09-320-00031, 99th Regional Support Command, dated 16 November 2009

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 DD Form 4 provided by the applicant shows he enlisted in the USAR for 8 years in pay grade E-2 on 30 November 1984.  He subsequently completed his initial training and was awarded military occupational specialty 76V (Materiel Storage and Handling Specialist).

3.  The LES's provided by the applicant show he received pay from 13 June 1985 through January 1986 in pay grade E-2 and in pay grade E-5 from 1 February 1986 through June 1987.  [NOTE:  Cadets are paid at the E-5 rate.  The LES's indicate the monthly drill dates with his Reserve troop program unit (TPU)].

4.  Orders 14-5, dated 19 May 1987, discharged him from the USAR for the purpose of accepting a commission in the U.S. Armed Forces.  These orders identify the applicant as then being a cadet, Military Science IV.

5.  A DA Form 71, dated 5 June 1987, shows the applicant was at Auburn University where he was sworn in as a USAR second lieutenant.

6.  A DA Form 1506, dated 25 June 1990, shows the applicant's service as:

	a.  USAR (not on active duty) – 30 November 1984 to 12 June 1985,

	b.  U.S. Army (active duty) – 13 June 1985 to 27 September 1985,

	c.  USAR (not on active duty) – 5 June 1987 to 22 June 1990, and

	d.  U.S. Army (active duty) – 23 June 1990 to present [25 June 1990].

7.  The DA Form 1506 does not include any service time for his SMP service during the period 1985 to 1987.

8.  A DD Form 214 for the period ending 1 April 2000 shows the applicant served on active duty from 8 March 1990 to 1 April 2000, attained the rank of captain/
pay grade O-3, and completed 10 years and 24 days of creditable active duty service.

9.  The applicant was promoted to major/pay grade O-4, USAR, effective 4 August 2001.

10.  A DD Form 214 for the period ending 10 September 2006 shows the applicant was ordered to active duty on 8 May 2005 in support of Operation Iraqi Freedom, served in Kuwait/Iraq from 29 July 2005 to 28 July 2006, and was released from active duty on 10 September 2006.

11.  Orders 09-320-00031, 99th Regional Support Command, dated 16 November 2009, reassigned the applicant to the Retired Reserve effective 15 December 2009.

12.  The ROTC SMP is a voluntary officer training program designed to increase the number of ROTC officers available for Reserve Forces Duty.  Subject to limitations, it permits an ROTC cadet to train in the ROTC Advanced Course while simultaneously participating as an officer-trainee in paid training assemblies with a USAR TPU.  To be eligible for ROTC SMP participation, a cadet must be enrolled in the ROTC Advanced Course non-scholarship program; be assigned to a verified officer-trainee position in a TPU, meet the Army body composition/weight control standards, and agree to volunteer for commissioning under the provisions of the ROTC Early Commissioning Program upon successful completion of the ROTC Advanced Course.

13.  Public Law 104-201, section 507, dated 23 September 1996, amended the provisions of the law to provide service credit for the SMP retroactive to 1 August 1979 when the SMP actually began.  The revisions will result in no increase in pay, retired or retainer, before the date of enactment on 23 September 1996.  If the credit results in a higher basic pay due to a change in the pay entry basic date (PEBD), the effective date of the increase will be 23 September 1996.

14.  Message, Headquarters, Department of the Army (DAPE-MPO-S), dated 161200Z January 1997, subject:  Service Credit for Senior ROTC Cadets and Midshipmen in the SMP, provided policy guidance and authority to recompute the PEBD based on service credit under the SMP.

15.  In the processing of this case, an advisory opinion was obtained from the Chief, Personnel Actions Branch, U.S. Army Human Resources Command, Fort Knox, Kentucky.  The opinion stated there is no ROTC or ROTC SMP contract in his records showing the exact date of entry into SMP.  However, the applicant's  record reflects the combined total number of points for his ROTC and SMP service, but is coded as USAR time. The applicant was credited with the points he is requesting for the period 1985 to 1987.  Furthermore, the opinion states the applicant's records do not show all of his active duty points for the period 30 November 1989 to 29 November 1990.  The active duty points shown for this period as "80" should read "257."

16.  A copy of the advisory opinion was provided to the applicant for comment.  He stated that his original request was to receive compensation for his time served during ROTC SMP.  He provided copies of his USAR Personnel Command (ARPC) Forms 249-E (Chronological Statement of Retirement Points) showing the points were corrected in October 2009 to add the missing points for ROTC SMP.  He contends that for almost his entire career, he had not received credit for this service or compensation.  He also provided a sworn statement with supporting documents from another Soldier with whom he had served at the time as proof of his ROTC SMP service.  The applicant still states he is entitled to compensation for his time served in the ROTC SMP, as well as any back pay and allowances due as a result of Public Law 104-201, section 507, dated 23 September 1996.

17.  An ARPC Form 249-E, dated 30 October 2009, credits the applicant with 15 membership points and 80 active duty points, totaling 95 points for the period 30 November 1989 to 29 November 1990.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his records should be corrected to credit him for being in the SMP from October 1985 to 4 June 1987 and to adjust his pay records accordingly.

2.  While there is no available ROTC or ROTC SMP contact, the applicant's LES's clearly show he was assigned to a TPU and actively participated with that unit during the entire period he was in ROTC.  On 1 February 1986, he began receiving pay at the E-5 rate.  Therefore, it appears he entered the SMP program effective 1 February 1986 and his records should be accordingly corrected.

3.  Furthermore, the applicant's ARPC Form 249-E should be corrected to change his active duty points for the period 30 November 1989 to 29 November 1990 from "80" to "257" and adjust the corresponding point totals.

4.  Based on the implementation of Public Law 104-201 in 1996, the applicant's entire pay record should be audited for the entire period from 1 February 1986 to his release from active duty on 10 September 2009.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__X_____  ___X____  ____X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  showing the applicant participated in the ROTC SMP program from 1 February 1986 through 4 June 1987,

	b.  correcting the applicant's ARPC Form 249-E to change his active duty points for the period 30 November 1989 to 29 November 1990 from "80" to "257" and adjust the corresponding point totals,

	c.  auditing the applicant's entire military pay record, and

	d.  paying all monies due as a result of these corrections.

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to showing the applicant participated in the ROTC SMP program from October 1985 through January 1986.



      _________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)                                         AR20100013229



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ABCMR Record of Proceedings (cont)                                         AR20100013229



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