RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF:	DOCKET NUMBER:  BC-2002-01661
		INDEX CODE:  129.01

		COUNSEL:  NONE

		HEARING DESIRED:  NO

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APPLICANT REQUESTS THAT:

His “Pay Date” be adjusted to reflect the change in Public Law 104-201, Section 507, dated 23 Sep 96.

By amendment at Exhibit E, the applicant is requesting that his date of rank (DOR) to the grade of first lieutenant be changed from “2 Jun 95” to “29 May 95” and that his DOR to the grade of captain be changed from “2 Jun 97” to “29 May 97.”

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APPLICANT CONTENDS THAT:

The change in law allows credit for pay date when a member has incurred a Reserve obligation time if the member was concurrently serving as a cadet.

His Air Force records indicate he was promoted to the grade of first lieutenant, with a DOR of “2 Jun 95” and to captain, with a DOR of “2 Jun 97.”  However, since the advisory writer states he was promoted to the grade of first lieutenant on “29 May 95” and to captain on “29 May 97,” his official records should mirror the advisory writer’s records.

In support of his request, the applicant submits a personal statement and additional documents associated with the issues cited in his contentions.  The applicant’s complete submission, with attachments, is at Exhibit A.

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STATEMENT OF FACTS:

Information extracted from the applicant’s submission reveals that the applicant entered the Delayed Entry/Enlistment Program (DEP), United States Army Reserve, on 15 Sep 86.  He was discharged from the DEP in the pay grade of E-2 on 17 Mar 87 and enlisted in the Regular component of the United States Army (USA).  Special Orders 128-6, dated 15 Jul 88, reflects that the applicant entered the United States Military Preparatory School on 31 Jul 88.  On 27 Jun 89, he was released from active duty to enter U.S. Military Academy (USMA).  Upon graduation from the USMA, he was commissioned a second lieutenant in the Reserve of the Air Force, effective 29 May 93, and commissioned a second lieutenant in the Regular Air Force, effective and with a date of rank (DOR) of 2 Jun 93.  The applicant’s Leave and Earnings Statement (LES), covering the period 1‑30 Apr 02, reflect a pay date of 19 Feb 91.

Information extracted from the Military Personnel Data System (MilPDS) reveals that the applicant was promoted to the grade of first lieutenant, effective and with a DOR of 2 Jun 95, and to the grade of captain, effective and with a DOR of 2 Jun 97.

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AIR FORCE EVALUATION:

HQ AFPC/DPPAO recommends the application be denied.  DPPAO indicates that, in accordance with the Department of Defense Pay Manual of 1 Jan 93, when a member is currently serving as an officer and has had service as a cadet or midshipman after 25 Jun 56, the period is not creditable for pay.  DPPAO states that the applicant was awarded pay credit for the period 17 Mar 87 to 27 Jun 89.  This credit was subtracted from his commissioning date of 29 May 93, arriving at a pay date of 18 Feb 91.  Based on the governing directives, the applicant’s pay date was computed correctly.  However, should the Board approve the relief sought, the record should be corrected to reflect a pay date of 17 Mar 87.  The HQ AFPC/DPPAO evaluation, with attachments, is at Exhibit C.

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APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

The applicant reviewed the advisory opinion and indicated that the change in Public Law 104-201, Section 507, on 23 Sep 96, changes the law to recognize concurrent service.  These changes are reflected in DoD Financial Management Regulations, dated Feb 99 and Feb 02, and supersedes advisory writer’s referenced DoD Pay Manual of 1 Jan 93.  He has provided HQ AFPC/DPPAO with additional proof of concurrent service as cited in his orders releasing him from U.S. Military Academy (USMA) and “dual status are concurrently discharged from cadet and enlisted status.”  He also provided a copy of his orders identifying his “Terminal Date of Reserve Obligation:  Ends on 14 Sep 97.”

Further, he believes a precedent was established because the U.S. Army recognized the change in law by adjusting pay dates in two specific cases that he is aware of at this time.  In both cases the U.S. Army officers had similar prior enlisted service (U.S. Army), with Reserve obligation dates, and both were commissioned from the U.S. Military Academy at West Point.  Both members received a change in their pay date based on the change in Public Law by the U.S. Army Personnel and Finance Office.

The applicant’s complete submission, with attachments, is at Exhibit E.

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ADDITIONAL AIR FORCE EVALUATION:

Pursuant to the Board’s request, the following legal opinion is provided.

HQ USAF/JAG recommends the application be denied.  JAG disagrees with the applicant’s interpretation of 10 U.S.C., 2107(g), as amended by section 507 of the National Defense Authorization Act for Fiscal Year 1997 (P.L. 104-201, Sep 23, 1996).  In JAG’s opinion, the statute allows concurrent enlisted service as a member of the selected Reserve to be used in computing creditable service for pay dates only for officers who were cadets or midshipmen in the Senior Reserve Officers’ Training Corps (SROTC) program.  The provision relied upon by the applicant does not apply to concurrent service in the Selected Reserve while serving as a cadet or midshipman at a service academy.  Section 2107(g) applies only to an officer commissioned pursuant to a SROTC financial assistance agreement who was also a member of the Selected Reserve while in the SROTC prior to appointment as an officer.  Because the applicant was appointed an officer subsequent to graduation from the U.S. Military Academy, and not pursuant to a financial assistance agreement as an SROTC cadet under Section 2107, he is not entitled to the application of Section 2107(g) in computing creditable service for his pay date.  The authority in paragraph 010104 of the DoDFMR cannot be any broader than the legislative authority granted in Section 2107(g).  It therefore does not apply to an officer who was a cadet at the U.S. Military Academy prior to commissioning even though he was concurrently a member of the Selected Reserve during his cadet service.  JAG states that the fact that another DoDFMR provision (paragraph 010104.K) provides that service credit may be given for service “as a member of the… Reserve Officer Training Corps provided the member has concurrent Reserve status” does not serve to indicate that paragraph 010104.I is intended to apply to Academy cadets or midshipmen.

The applicant asserts that the Army has given pay credit to two Army officers for their cadet service at the Military Academy because they were also in the Reserves during that period of service.  Even if the applicant’s assertion is accepted as fact, JAG does not believe it provides a valid precedent for granting the relief requested.  In JAG’s opinion, there is no valid statutory or regulatory authority for granting such service credit.  JAG believes the HQ AFPC recommendation that the application be denied is correct.

The HQ USAF/JAG evaluation is at Exhibit F.

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APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

A copy of the Air Force evaluation was forwarded to applicant on 5 Mar 03 for review and response.  As of this date, this office has received no response (Exhibit E).

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THE BOARD CONCLUDES THAT:

1.  The applicant has exhausted all remedies provided by existing law or regulations.

2.  The application was not timely filed; however, it is in the interest of justice to excuse the failure to timely file.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of error or injustice.  We took notice of the applicant's complete submission in judging the merits of the case.  However, we agree with the opinions and recommendations of the respective Air Force offices concerning applicant’s Pay Date and adopt the rationale expressed as the basis for our decision that the applicant has failed to sustain his burden that he has suffered either an error or an injustice.  Inasmuch as the statute does not apply to cadets at service academies, this change in law would not affect the applicant’s established Pay Date.  With regard to the applicant’s request that his dates of rank to the grades of first lieutenant and captain be changed as indicated in the HQ AFPC/DPPAO advisory opinion, we disagree.  In this respect, we note that the applicant’s dates of rank in question are accurately reflected in the Military Personnel Data System (MilPDS).  Therefore, even though the advisory writer misstated the dates of rank this, in and of itself, does not justify an erroneous correction.  In view of the above and absent evidence to the contrary, we find no compelling basis to recommend granting the relief sought in this application.

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THE BOARD DETERMINES THAT:

The applicant be notified that the evidence presented did not demonstrate the existence of material error or injustice; that the application was denied without a personal appearance; and that the application will only be reconsidered upon the submission of newly discovered relevant evidence not considered with this application.

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The following members of the Board considered this application in Executive Session on 18 June 2003, under the provisions of AFI 36-2603:

	            Vice Chair
	            Member
	            Member

The following documentary evidence was considered in connection with AFBCMR Docket Number BC-2002-01661.

   Exhibit A.  DD Form 149, dated 13 May 02, w/atchs.
   Exhibit B.  Applicant's Master Personnel Records.
   Exhibit C.  Letter, HQ AFPC/DPPAO, dated 4 Oct 02, w/atchs.
   Exhibit D.  Letter, SAF/MRBR, dated 11 Oct 02.
   Exhibit E.  Letter from Applicant, dated 15 Oct 02, w/atchs.
   Exhibit F.  Letter, HQ USAF/JAG, dated 28 Feb 03.
   Exhibit G.  Letter, AFBCMR, dated 5 Mar 03.

                                   
                                   Vice Chair