IN THE CASE OF:	

	BOARD DATE:	5 March 2009

	DOCKET NUMBER:  AR20080015482 


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 records to show the minimum points necessary for a qualifying retirement year for each of the three years he served as a reservist in the Reserve Officers’ Training Corps (ROTC).

2.  The applicant states, in effect, he served in the ROTC from 1993 to 1996 as an ROTC instructor, he received orders assigning him to his ROTC unit, and an award for his service, which bolsters the fact that he was fully performing as an active reservist during this period.  He also states that he completed more than the maximum hours necessary to qualify for a good retirement year (each year) during this 3-year period.  The applicant further states he distinctly remembers the Professor of Military Science (PMS) telling him that even though he was not receiving pay, he would have the necessary hours needed for each year to apply towards retirement.  The applicant concludes by stating he recently discovered that there are no DA Forms 1380 (Records of Individual Performance of Reserve Duty Training) on record that certify his hours.

3.  The applicant provides copies of a DA Form 4651 (Request for Reserve Component Assignment or Attachment), dated 16 September 1993; Headquarters, U.S. Army Reserve Personnel Center (ARPERCEN), St. Louis, Missouri, Orders C-10-338150, dated 19 October 1993; and DA Form 638 (Recommendation for Award), dated 23 February 1996.


CONSIDERATION OF EVIDENCE:

1.  The applicant’s military personnel records show that he enlisted as a cadet in the U.S. Army Reserve (USAR) for a period of 8 years on 21 August 1991.  On 14 May 1993, he was appointed as a Reserve commissioned officer in the Army of the United States, in the grade of second lieutenant.

2.  The applicant's military personnel records contain a copy of Headquarters, U.S. Army Fourth Region, U.S. Army ROTC Cadet Command, Fort Lewis, Washington, Orders 84-30, dated 12 May 1993, that show he was released from the U.S. Army Fourth Region Accessions Detachment, Fort Lewis, Washington, as a member of the ROTC Early Commissioning Program, and assigned to the USAR Control Group (Officer Active Duty Obligor (OADO)) effective 14 May 1993.  The Additional Instructions of the orders, in pertinent part, attached the applicant to the ROTC Detachment at the University of Denver, Denver, Colorado and instructed the applicant to report his status as prescribed by the PMS at least once per calendar month until completion of his studies.  The orders also show the applicant’s anticipated graduation was 31 May 1995.

3.  The applicant’s military personnel records contain a copy of Headquarters, U.S. Total Army Personnel Command, St. Louis, Missouri, memorandum, dated 19 April 2000, subject:  Appointment as a Reserve Commissioned Officer of the Army Under Title 10, U.S. Code (USC), sections 12201 and 12203.  This document shows the applicant was appointed as a Reserve commissioned officer of the Army as a Judge Advocate General (JAG) Corps officer in the grade of first lieutenant on 16 May 2000.  The applicant was subsequently ordered to active duty for a period of 4 years on 12 June 2000.

4.  The applicant's military personnel records contain a DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he entered active duty this period on 12 June 2000, was promoted to the grade of captain effective 1 January 2001, and honorably discharged on 3 March 2008 under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 3-5, based on miscellaneous/general reasons.  At the time he had completed 7 years, 8 months, and 22 days of net active service this period; no prior active service; and 7 years and 28 days of total prior inactive service.

5.  The applicant’s military personnel records contain a copy of Headquarters, U.S. Army Human Resources Command (HRC), St. Louis, Missouri, memorandum, dated 22 May 2008, subject:  Appointment as a Reserve 

Commissioned Officer of the Army under Title 10, USC, sections 12201 and 
12203.  This document shows the applicant was appointed as a Reserve commissioned officer of the Army as a JAG Corps officer in the grade of captain on 4 March 2008.

6.  The applicant’s Total Army Personnel Data Base electronic record, accessible via the HRC Integrated Web Services portal contains the applicant’s online Retirement Points Summary.  This document, in pertinent part, shows beginning on 1 October 1991 through the retirement year ending (RYE) date of 13 May 1993, the applicant was a member of the ROTC and did not earn any creditable retirement points.  This document also shows that beginning on14 May 1993 for the RYE 13 May 1994, the applicant earned 15 membership points; for the RYE 13 May 1995, the applicant earned 15 membership points; and for the RYE 13 May 1996, the applicant earned 15 membership points.  The Retirement Points Summary is absent evidence that the applicant earned any other creditable retirement points during these retirement years (RY).

7.  The applicant’s military personnel records are absent any DA Forms 1380 showing the applicant earned retirement points during the period from 1 October 1991 through 13 May 1996.

8.  In support of his application, the applicant provides copies of the following documents.

	a.  A DA Form 4651, dated 16 September 1993, that shows the major serving as Assistant PMS, Department of Military Science, Metropolitan State College of Denver, Denver, Colorado, requested the applicant’s attachment to the unit effective 14 October 1993.

	b.  Headquarters, ARPERCEN, St. Louis, Missouri, Orders C-10-338150, dated 19 October 1993, that show the applicant was attached to the Metropolitan State College of Denver, Denver, Colorado, effective 14 October 1993 for the purpose of training/points only.

	c.  A DA Form 638, dated 23 February 1996, that shows the applicant was awarded the Army Achievement Medal for meritorious service from 14 October 1993 to 10 May 1996, per Headquarters, Fourth Region (ROTC), Fort Lewis, Washington, Permanent Order Number 73-5, dated 13 March 1996.  Part III (Justification and Citation Data), item 20 (Achievements), Achievement 1, in pertinent part, shows the applicant volunteered as a newly commissioned second 

lieutenant in the Individual Ready Reserve to serve as Assistant PMS and that he provided detailed and comprehensive classroom instruction to over 120 Military Science I and II students through five semesters.  Achievement 2, in pertinent part, shows that as the officer in charge of the Grenade Assault Course during the Ranger Challenge, the applicant ensured that the course was run professionally and fairly for all competitors for (the past) three semesters.

9.  In connection with the processing of this case, an advisory opinion was obtained from the Officer Personnel Retirement Points Program Office, HRC, St. Louis, Missouri.  The advisory official states that a review of the applicant’s military personnel records verified the applicant was attached to a unit to drill for points only; there was no documentation showing the days and hours spent drilling; and without the proper documentation, retirement points cannot be awarded.  The advisory official also advised that retirement points cannot be awarded based on the DA Form 638 provided by the applicant; however, he may provide source documents substantiating his retirement points in support of his request to assist in the effort.

10.  On 23 January 2009, the applicant was provided a copy of the HRC advisory opinion in order to have the opportunity to respond to its contents.  On 4 February 2009, the applicant provided a response stating that the evidence in his initial packet was not considered properly and he asks for the Board to award him retirement points for the 3 years of additional military service.  He also provided additional documents in support of his request.

	a.  The applicant states he was attached to the ROTC Department at Metropolitan State College of Denver in 1993 and served as an Assistant PMS from October 1993 to May "2006" [sic].  He states that the hours involved in preparing for and executing his duties easily exceeded 50 hours per semester for six consecutive semesters.

	b.  The applicant states he was awarded the Army Achievement Medal, which details his activities while attached to the ROTC Department, and adds proof that these duties were carried out over the specified period of time.

	c.  The applicant states he received a letter from the officer who served as his direct supervisor during the period of service under review, which verifies his assertions.  He adds that he believes this documentation certifies that he is not looking for anything to be added to his military records that he did not fully earn as a Reservist.  In support of his rebuttal to the advisory opinion, he provides a 

copy of Headquarters, U.S. Army Command and General Staff College, Fort Leavenworth, Kansas, memorandum, dated 8 September 2008, subject:  [Applicant’s Rank and Name] Performance of Duty, submitted by Lieutenant Colonel (LTC) Roger J. L____, the applicant’s supervisor at the time.  This document shows that LTC L____ attests that the applicant was responsible for providing instruction for Military Science I students, as well as participating as a cadre member during all lab periods, physical training periods, Ranger Challenge, and field exercises.  He also states, in pertinent part, "[t]he hours involved in preparing for and executing these activities easily exceeded fifty hours per semester for six consecutive semesters.  These semesters included:  Fall semester 1993 [August - December 1993], Spring semester 1994 [January - May 1994], Fall semester 1994 [August - December 1994], Spring semester 1995 [January - May 1995], Fall semester 1995 [August - December 1995], and Spring semester 1996 [January - May 1996]."

	d.  The applicant concludes by stating he was unable to verify this oversight until he recently obtained a Drilling Individual Mobilization Augmentee position at the Presidio of Monterey.  In further support of his rebuttal to the advisory opinion, he provides a copy of Headquarters, HRC, St. Louis, Missouri, Orders C-06-810888, dated 6 June 2008, that show he was assigned to the Staff Judge Advocate, Contract Law Office, U.S. Army Training and Doctrine Command, Fort Monroe, Virginia, effective 6 June 2008.

11.  Army Regulation 140-185 (Training and Retirement Points Credit and Unit Level Strength Accounting Records) prescribes the types of training and activities for which retirement points are authorized.  It also discusses the procedures for recording retirement point credits and training for Reserve Component Soldiers.

	a.  Paragraph 2-1 (Criteria for crediting retirement points) states that the limitations on the number of points which may be credited to a Soldier during a retirement year are a maximum of 365 (366 during leap year) points, a maximum of 15 membership points, and a maximum of 60 points (in effect at the time) for inactive duty training; however, the Annual or Terminal Statement of Retirement Points will report all points earned.

	b.  Paragraph 2-2 (Criteria for earning retirement points) states, in pertinent part, that retirement points may be earned by USAR Soldiers for active duty (AD), or while in an active Reserve status, for active duty for training, initial active duty for training, involuntary active duty for training, annual training, inactive duty training (IDT), Reserve membership, and for other activities specified in this 

regulation.  For the purposes of this regulation, the types of IDT are as follows:  (1) regularly scheduled unit training, includes unit training assemblies (UTA) and multiple unit training assemblies (MUTA), (2) regularly scheduled training (RST) other than UTA/MUTA, (3) make-up assemblies for missed UTA/MUTA due to annual training, (4) equivalent training in lieu of scheduled UTA/MUTA or RST, (5) additional training assemblies, (6) 2-hour unit training assemblies, and (7) training of individual Soldiers in a non-pay status.

12.  Army Regulation 135-180 (Qualifying Service for Retired Pay Non-Regular Service) implements statutory authorities governing the granting of "retired pay" to Soldiers and former Reserve Component Soldiers.  Paragraph 2-8 defines qualifying service and states, in pertinent part, that a Reserve Component Soldier must earn a minimum of 50 retirement points each RY to have that year credited as qualifying service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his military personnel records should be corrected to show the minimum points necessary for a qualifying RY for each of the 3 years he served as a Reservist in the ROTC from 1993 to 1996.

2.  The evidence of record shows that the applicant was assigned to the USAR Control Group (OADO) and attached to the ROTC Detachment at the University of Denver, Denver, Colorado, effective 14 May 1993 through the completion of his studies.  The evidence of record also shows the applicant was further attached to the Metropolitan State College of Denver, Denver, Colorado, for the purpose of training/points only effective 14 October 1993.

3.  The evidence of record shows that the HRC advisory official verified that the applicant was attached to a unit to drill for points only; however, there was no documentation showing the days and hours spent drilling and that without the proper documentation, retirement points cannot be awarded.

4.  Records show that beginning on 14 May 1993, for each of the three RYs under review (i.e., RYE 13 May 1994, RYE 13 May 1995, and RYE 13 May 1996), the applicant was credited with 15 membership points each RY; however, he was not credited with any other creditable retirement points during this period.

	a.  The evidence of record shows that the applicant’s supervisor during the period of service under review confirms that the applicant was responsible for 

providing instruction for Military Science I students and that he participated as a cadre member during all lab periods, physical training periods, the Ranger Challenge, and field exercises.  The evidence of record also indicates that the hours involved in preparing for and executing these activities (by the applicant) easily exceeded 50 hours per semester for six consecutive semesters during each of the three RYs under review (i.e., RYE 13 May 1994, RYE 13 May 1995, and RYE 13 May 1996).  Thus, the applicant’s supervisor at the time attests to the fact that the applicant completed more than 100 IDT hours during each of the RYs under review.

	b.  While the veracity of the applicant’s supervisor’s comments are not in question, his letter alone offers insufficient evidence to substantiate that the applicant completed 100 IDT hours during each of the three RYs under review.  Nonetheless, a thorough review of the evidence of record in this case confirms that the applicant was attached to the ROTC unit for training/points only, served as Assistant PMS, and trained individual Soldiers in a non-pay status.  Thus, the preponderance of evidence in this case shows that the applicant did, in fact, earn IDT retirement points during the period of service under review.

5.  While it is not clear why the applicant’s IDT retirement points were not documented on DA Forms 1380 during this period, it appears that this was an administrative oversight on the part of the responsible Army officials at the time.  In addition, the evidence of record confirms that the applicant dedicated many hours (i.e., in excess of 100 hours each RY) in the preparation for and training of individual Soldiers in a non-pay status.  Despite the fact that the exact number of hours was not properly documented at the time and cannot now be definitively ascertained from the evidence of record, it is reasonable to conclude that the applicant did earn a minimum of 35 IDT retirement points during each of the RYs under review.  Therefore, as a matter of justice, it would be appropriate to correct the applicant’s records in this instance.

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 crediting the applicant with IDT points and adjusting his total points creditable for the retirement years, as shown below:

			  IDT	  Mbr		Adjusted Total
	Begin Date	  End Date	Points	Points	    Creditable

	1993 05 14	1994 05 13	   35	   15	          50
	1994 05 14	1995 05 13	   35	   15	          50
   1995 05 14	1996 05 13	   35	   15	          50



      ___________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)                                         AR20080015482



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ABCMR Record of Proceedings (cont)                                         AR20080015482



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