BOARD DATE:	  5 May 2015

		DOCKET NUMBER:  AR20140008113 


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 DD Form 214 (Certificate of Release or Discharge from Active Duty) to show service credit for attendance at the U.S. Military Academy, West Point.

2.  The applicant states:

	a.  His DD Form 214 does not include his 4 years of active duty as a West Point cadet.

	b.  Item 31 (Service Computation Date (Leave)) of one of his last Standard Forms 50-B (Notification of Personnel Action) indicates his service date originates on 27 December 1983.  The difference between this date and the date he arrived at the U.S. Military Academy on 1 July 1983 is equal to the difference between his discharge date of 6 January 1989 and his date of entry into civil service on 3 July 1989.

3.  The applicant provides:

* U.S. Military Academy Form 3-239-R (Academic Transcript), dated 3 June 1987
* DD Form 214 (Member Copy) for the period ending 6 January 1989
* Standard Form 50-B, dated 9 January 2005
* National Personnel Records Center correspondence, dated 3 September 2007
* Department of Veterans Affairs correspondence, dated 28 February 2014

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 entered the U.S. Military Academy, West Point, on 1 July 1983.  He graduated on 27 May 1987 with a Bachelor of Science Degree in Mechanical Engineering (Aerospace).  He was appointed and commissioned as a second lieutenant in the Regular Army and entered active duty on 27 May 1987.

3.  His U.S. Military Academy Form 3-239-R, dated 3 June 1987, confirms he entered the U.S. Military Academy on 1 July 1983 and graduated on 27 May 1987 with a Bachelor of Science Degree in Mechanical Engineering (Aerospace).

4.  U.S. Total Army Personnel Agency message, dated 19 December 1988, subject:  Resignation for the Good of the Service, states his resignation for the good of the service was approved by the Office of the Deputy Assistant Secretary of the Army under the provisions of Army Regulation 635-120 (Officer Resignations and Discharges), chapter 5, effective as soon as possible but not later than 14 calendar days after official notification of this action and directed his discharge under other than honorable conditions.

5.  Headquarters, U.S. Army Field Artillery Center and Fort Sill, Orders 003-101, dated 3 January 1989, discharged him under the provisions of Army Regulation 635-120 effective 6 January 1989.

6.  His DD Form 214 (Service Copy) for the period ending 6 January 1989 shows he was discharged under other than honorable conditions under the provisions of Army Regulation 635-120, chapter 5, by reason of conduct triable by court-martial.  He completed 1 year, 7 months, and 10 days of active service.

7.  The Standard Form 50-B, dated 9 January 2005, shows an adjustment was made to his Department of the Army civilian pay.  Item 31 shows his civilian service computation date for leave purposes as 27 December 1983.

8.  The National Personnel Records Center correspondence, dated 3 September 2007, shows the National Personnel Records Center provided copies of his military separation documents per his request.

9.  The Department of Veterans Affairs correspondence, dated 28 February 2014, shows the Department of Veterans Affairs determined he was not eligible for the home loan benefit because he did not serve the minimum of 24 months required.

10.  Army Regulation 635-120, in effect at the time, prescribed procedures whereby an officer on active duty could tender his resignation or be discharged and whereby officers on active duty or retired officers could be dropped from the rolls of the Army.  Chapter 5 provided that an officer could submit a resignation for the good of the service when court-martial charges were preferred against him with a view toward trial by general court-martial.

11.  Army Regulation 635-5 (Separation Documents), in effect at the time, prescribed the separation documents prepared for individuals upon retirement, discharge, or release from active military service or control of the Army.  It established standardized policy for preparing and distributing the DD Form 214.

	a.  Paragraph 1-4 provided that a DD Form 214 would be prepared for each cadet of the U.S. Military Academy who failed to graduate.  If the cadet entered the academy from an active duty status, the DD Form 214 would be issued at the end of the term of active duty service.  No other provisions existed for issuing DD Forms 214 to cadets of the U.S. Military Academy.

	b.  The pertinent line-by-line instructions for item 12 (Record of Service) stated:

* item 12a (Date Entered Active Duty This Period) – enter the date of the first day of the last immediate reenlistment for which a DD Form 214 was not issued under the provisions of paragraph 1-4
* item 12b (Separation Date This Period) – self-explanatory
* item 12c (Net Active Service This Period) – all service entered will be less time lost under Title 10, U.S. Code, section 972, and time lost after expiration of term of service – for cadets, enter the total time between dates entered in items 12a and b with reference to item 18 (Remarks)
* item 12d (Total Prior Active Service) – all service entered will be less time lost under Title 10, U.S. Code, section 972, and time lost after expiration of term of service
* item 12e (Total Prior Inactive Service) – all service entered will be less time lost under Title 10, U.S. Code, section 972, and time lost after expiration of term of service

	c.  The instructions for item 18 stated to use the remarks section of the DD Form 214 for entries required by Department of the Army Headquarters for which a separate item is not available on the form and for completing entries that are too long for their blocks.  Specifically, when a separatee is a cadet, enter:  "Item 12 includes service as a cadet, USMA, from (date of entrance in USMA) to date of separation."

12.  The Department of Defense Financial Management Regulation prescribes computation of creditable service.

	a.  Section 010104A1b provides that all basic pay date computations start from the date of the member's most recent entry on active duty without a break in service.  For officers, this is the date of acceptance of a commission.  The date of acceptance for officers graduating from a military service academy is the date of graduation.

	b.  Longevity credit for pay purposes does not accrue to officers while attending the U.S. Military Academy and they are not eligible to receive longevity pay increases during that time.  Additionally, active duty time spent in a student status does not count in determining eligibility for retirement, but is creditable for computing retirement pay.  The time spent in school is fully creditable for promotion purposes.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his DD Form 214 should show service credit for attendance at the U.S. Military Academy, West Point.

2.  In accordance with the Department of Defense Financial Management Regulation, the date of entry on active duty for officers is the date of acceptance of a commission.  The date of acceptance for officers graduating from a military service academy is the date of graduation.

3.  Army Regulation 635-5, in effect at the time, only provided for documenting service credit for U.S. Military Academy cadets who failed to graduate.  Later versions of the regulatory guidance for preparation of separation documents have not changed this policy.

4.  In view of the aforementioned information, there is no basis for granting 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)                                         AR20140008113



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ABCMR Record of Proceedings (cont)                                         AR20140008113



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