IN THE CASE OF:	  

		BOARD DATE:	    5 December 2013

		DOCKET NUMBER:  AR20130018996 


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 date of enlistment and date of initial entry into military service (DIEMS) from 8 September 1980 to 7 September 1980. 

2.  The applicant states his initial enlistment date as recorded on his DD Form 4 (Enlistment Document – Armed Forces of the United States) is in error and justice requires correction.  This error was made because the Reserve Officers' Training Corps (ROTC) Department at his college which drafted and executed his enlistment document made an administrative error due to lack of knowledge.

	a.  In Spring 1980, he was selected for a 4-year Army ROTC scholarship and admitted to Wheaton College, IL.  He began college in Fall 1980, including ROTC classes and training.  On 8 September 1980, he was called suddenly to the ROTC Department to execute his oath of enlistment.  About 10 others who were scholarship cadets were hustled into an office where they all executed their oaths of enlistment.  An ROTC instructor explained that it was important for all to take their oaths of enlistment that day, because it would affect future retirement pay.  At the time, he was just 18 years old and he was only planning to be commissioned and to fulfill my active duty commitment. Retirement was not a concern.  He took his oath of enlistment that day as he was told.

	b.  He now understands that the ROTC Department should have had him execute the oath of enlistment on or before 7 September 1980.  The DIEMS date on his leave and earnings statement (LES) is currently reflected as 8 September 1980, and his LES reflects that he is under the High-3 retirement plan.  This is because Title 10, U.S. Code, section 1406, states that the final basic pay retirement plan applies to personnel who became members before 8 September 1980.  He asks for his date of initial enlistment to be changed to 7 September 1980 out of fairness.  His small ROTC Department did not understand a changing law.  His ROTC instructors attempted to help him, but did not understand that they needed to execute his enlistment papers earlier than 8 September 1980.

3.  The applicant provides his DD Form 4.

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 service records prior to his appointment as a Reserve commissioned officer of the Army on 29 November 1988 are not available for review with this case. 

3.  He submitted a DD Form 4 that shows he enlisted in the U.S. Army Reserve on 8 September 1980 for 6 years as a cadet.  He acknowledged that the enlistment oath was administered, subscribed, and duly sworn on 8 September 1980.  He also completed a DA Form 597 (Army ROTC Scholarship Cadet Contract) on that date.

4.  On 5 January 1988, he completed a DA Form 160 (Application for Active Duty) and a DA Form 61 (Application for Appointment).  He indicated he graduated (or would graduate) from:

* Wheaton College on 3 May 1985 with a Bachelor degree in Philosophy, and in August 1988 with a Master degree in Theology
* University of Virginia with a law degree on 21 May 1988

5.  On 21 October 1988, the U.S. Total Army Personnel Command issued Orders A-10-001272 ordering him to active duty with assignment to the U.S. Military Academy effective 16 November 1988 to fulfill active duty requirements.  

6.  He was appointed as a Reserve commissioned officer of the Army and executed an oath of office on 29 November 1988. 

7.  He served in a variety of stateside or overseas assignments and he attained the rank of colonel.  He is currently assigned to the U.S. Army Element, U.S. Northern Command, Patterson Air Force Base, CO. 

8.  Department of Defense Financial Management Regulation 7000.14-R states the retired pay base is determined based upon the date the member first entered military service and whether the member is retiring under regular, reserve, or disability provisions of law.  DIEMS is the date an individual was initially enlisted, inducted, or appointed in a regular or reserve component of a uniformed service as a commissioned officer, warrant officer, or enlisted member.  The DIEMS date determines whether the retired pay base is the monthly basic pay of the member just before retirement or an average of the highest 36 months of basic pay applicable during the member’s career. 

* Final Basic Pay – for members who first entered military service before 8 September 1980, the retired pay base is generally the final basic monthly pay that the member is receiving at the time of retirement
* High 3 (High-36) – for members who entered the military service on or after 8 September 1980 the retired pay base is generally the average of the highest 3 years (36 months) of basic pay the member received for any 36 months, whether consecutive or not, of active service

DISCUSSION AND CONCLUSIONS:

1.  The available evidence confirms the applicant enlisted in the USAR as a cadet on 8 September 1980.  He acknowledged that the enlistment oath was administered, subscribed, and duly sworn on 8 September 1980.  This became his DIEMS date. 

2.  The law changed on 8 September 1980 with respect to retired pay.  While it is clear this may impact his eligibility for retired pay at the Final Basic Pay vice the High-3 rate, the ABCMR does not correct records solely for the purpose of establishing eligibility for benefits or other programs.  The applicant has not shown an error or an injustice.  Therefore, he is not entitled to the requested relief. 

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 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.



ABCMR Record of Proceedings (cont)                                         AR20130018996





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ABCMR Record of Proceedings (cont)                                         AR20130018996



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