IN THE CASE OF:
BOARD DATE: 17 January 2012
DOCKET NUMBER: AR20110010142
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 that his records be corrected to show that his Date of Initial Entry to Military Service (DIEMS) is 7 July 1975.
2. The applicant states that his DIEMS was incorrectly posted on his records as the date he was commissioned from the United States Military Academy instead of the date he entered the academy and the error is affecting the disability portion of his retired pay.
3. The applicant provides a copy of orders permanently retiring him for permanent disability, copies of pay records from the Military Academy in 1975, and copies of correspondence from the Defense Finance and Accounting Service (DFAS).
CONSIDERATION OF EVIDENCE:
1. The applicant reported to the United States Military Academy at West Point, New York on 7 July 1975 as a member of the Class of 1979.
2. He graduated from the academy on 6 June 1979 and was commissioned as a second lieutenant. He served on active duty until he was honorably discharged in the rank of captain on 30 June 1990 due to non-selection for permanent promotion. He accepted a commission as a United States Army Reserve (USAR) captain on the same day.
3. He was promoted to the rank of major on 5 June 1991 and to the rank of lieutenant colonel on 4 June 1998.
4. The applicant was serving on active duty when he was diagnosed with Hodgkins disease and was placed on the Temporary Disability Retired List (TDRL) on 29 February 2008. He was removed from the TDRL on 26 February 2010 and was permanently retired the following day with a 30% disability rating.
5. A review of his records shows that the applicants DIEMS date was recorded as 6 June 1979, the date he was commissioned as a second lieutenant.
6. Military Personnel (MILPER) Message Number 03-102, dated 26 February 2003, Subject: DIEMS Date Accuracy announced a Human Resources Command initiative to conduct an Army accuracy scrub to validate DIEMS dates. DIEMS was defined as the date an individual was initially enlisted, inducted, or appointed in the Regular or Reserve Component of a Uniformed Service. It further stated, in pertinent part, that the DIEMS for Academy graduates who entered the academy with no prior service is the date they reported to the Academy, not the date they graduated. 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.
7. Title 10, U. S. Code, section 1406 states the retired pay base of any person entitled to retired pay under section 3914 (retirement of enlisted members 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 (also known as Final Pay).
8. Title 10, U. S. Code, section 1407(a) states 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, 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 determined under subsection (c) (Regular service) or (d) (non-Regular service) (also known as High-3).
DISCUSSION AND CONCLUSIONS:
1. The applicants contention that his DIEMS should have been established as 7 July 1975, the date he entered into the United States Military Academy as a cadet, was carefully considered and found to have merit.
2. The Army's policy stipulates the DIEMS for an Academy cadet will be established as the date the member entered into the Academy, provided he or she had no prior service. The available evidence confirms the applicant entered into the Academy on 7 July 1975 and was commissioned as a second lieutenant on 6 June 1979.
3. In view of the facts of this case, it would be appropriate to correct the applicants record to show his DIEMS is 7 July 1975 and amending his retirement orders accordingly.
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 that his DIEMS date is 7 July 1975 and amending his retirement orders accordingly.
____________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) AR20110010142
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ABCMR Record of Proceedings (cont) AR20110010142
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