RECORD OF PROCEEDINGS AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS IN THE MATTER OF: DOCKET NUMBER: BC-2012-01425 COUNSEL: NO XXXXXXX HEARING DESIRED: YES _________________________________________________________________ APPLICANT REQUESTS THAT: His DD Form 214, Certificate of Release or Discharge from Active Duty, be corrected to reflect the following: a) Block 12a, his initial entry on extended active duty (EAD) to read 2 Jun 04 versus 29 Sep 05. b) Block 12c, be adjusted to include his active service time as a Uniformed Services University Health Sciences (USUHS) student for the period 6 Aug 04 to 28 Sep 05 (418 days) versus the time being reflected as inactive service in Block 12e. c) Block 18, to add the remark that “418 days served at USUHS are not creditable in determining retirement eligibility or computing basic pay under 37 United States Code (USC) 205.” By letter, dated 23 May 13, the applicant amended his request to reflect that his DD Form 214, blocks 12a, 12c, 12d, 18, or a combination of these blocks be credited as active service rather than inactive service. _________________________________________________________________ APPLICANT CONTENDS THAT: 1. Department of Defense Instruction (DoDI) 1336.01, Certificate of Release or Discharge from Active Duty (DD Form 214/215 Series) enclosure 3, section 3j states “the date entered in block 12a shall be the date of enlistment for the earliest period of continuous active service for which a DD Form 214 was not previously issued.” 2. On 2 Jun 04, he was commissioned and served on continuous active duty until 2 Jun 12. The fact that he changed from line of the Air Force (LAF) to the Medical Service Corps (MSC) does not change the fact this his continuous active service began on 2 Jun 04. 3. Block 12c does not include 418 days of active duty he served while enrolled at USUHS instead the days are included in block 12e as total prior inactive service. This alignment is inappropriate because 10 USC states that medical students at USUHS shall serve on active duty in the grade of second lieutenant. Title 10 USC. 101.D.1 and 37 USC. 101.8 clearly define the definition of “active duty” when this term is used in the respective statutes. 4. Title 10 USC 101.D.3 and 37 USC 101.20 define the term “active service” to mean service on active duty in each of the respective statutes. Based on the clear definitions provided in the statute, it is inappropriate for the Air Force to label “inactive service” a period on active duty which the statute clearly defines as “active service.” 5. He understands the 418 days he served at USUHS are not creditable in determining eligibility for retirement or in computing years of service credible for the purpose of computing basic pay under 37 USC 205, IAW 10 USC 2126.A. The fact that this service is not credible for pay or retirement eligibility does not change the nature of his service from “active service” to “inactive service” as these terms are clearly defined in the federal statutes. The applicant's complete submission, with attachments, is at Exhibit A. _________________________________________________________________ STATEMENT OF FACTS: On 4 Apr 04, the applicant signed a USUHS Military Service Contract. Paragraph 17 states that “while in the program, officers are not on the active duty roster of any service and, consequently, are not eligible for promotion; moreover, such service is not counted: a) In determining eligibility for retirement, other than by reason of a physical disability incurred while on active duty as a member of the program and b) In computing years of service creditable for basic pay.” On 2 Jun 04, the applicant entered EAD. On 6 Aug 04, he was administered the Oath of Office as a Reserve Officer in the Medical Service Corps (MSC) as a participant in USUHS. On 28 Sep 05, he was disenrolled from USUHS student status and immediately entered EAD as a regular officer placed back on regular active duty. _________________________________________________________________ AIR FORCE EVALUATION: AFPC/DPSIPV recommends denial. DPSIPV states that according to 10 USC, section 2126 the applicant will not be given active duty credit on his DD Form 214 because time spent in USUHS is not counted in determining eligibility towards retirement. Furthermore, Title 10 USC section 2114 states that “USUHS students are appointed as regular officers and serve on “active duty” while in school. However, there is a distinction between active duty and the active duty list (ADL). In Title 10, section 101(b)(13), the term “ADL” means a single list for the Army, Air Force, Marine Corps or Navy (required to be maintained under Title 10, section 620), which contains the names of all officers of that armed force, other than officers described in Title 10, section 641, who are serving on active duty. Included in the list in Title 10, section 641(5) of members excluded from the ADL are students at USUHS. In addition, Air Force Instruction 36-2604, Service Dates and Dates of Rank, defines EAD for the purpose of determining service dates as duty on the ADL of an armed service for 90 days or more. DPSIPV states that based on law, time served as a member in USUHS is not creditable service for retirement eligibility. Therefore, the applicant is not eligible to receive active duty credit towards his Total Active Federal Military Service (TAFMS). Furthermore, since members in USUHS are excluded from the ADL, the applicant’s EAD time (continuous active service) began upon transfer from student status to regular active duty status The complete DPSIPV evaluation, with attachments, is at Exhibit B. _________________________________________________________________ APPLICANT'S REVIEW OF AIR FORCE EVALUATION: The applicant states that the DPSIPV advisory opinion fails to address, in any meaningful way, the central legal issues of his case; namely is the active duty service performed while a commissioned officer at USUHS active service IAW the definition found in 10 USC 101.D.3. He states that the answer is clear when one applies the principle that statutes are to be interpreted using the ordinary language found therein, unless a statute explicitly defines some of its terms otherwise. The applicant states that 10 USC 101.D.3 defines the term “active service” to mean service on active duty or full-time National Guard duty.” The statute indicates that any period which it defines as “active duty” should be considered active service. What the statute does not say is that active service is defined as service on the ADL. The language in the statute is explicit and should be interpreted as such. The applicant states that the advisory opinion attempts to confuse this clear distinction by suggesting that only active duty which is accrued while on the ADL should be counted as active service. This interpretation is not supported by the statute. In fact, 10 USC 101(b)(13) identifies that the ADL will include all officers of that armed force who are serving on “active duty” other than those officers identified in section 641, in which USUHS students are identified. Contrary to proving the contention provided by the advisory opinion, this passage in fact supports his case in its acknowledgement that USUHS members are not on the ADL, but are still on active duty. The controlling factor in whether a period of service is considered “active service” IAW Title 10 is whether that service is defined as “active duty” in the statute, and has absolutely nothing to do with whether that service is included on the ADL. The applicant asserts it inappropriate for the Air Force to characterize a period of service which the statute identifies as “active duty” and therefore by extension defines “active service” as “inactive service” on his DD Form 214. Furthermore, the applicant asserts the advisory opinion is an incorrect interpretation of the service credit exclusions found in 10 USC 2126. He acknowledged that active service performed at USUHS was not creditable for the purposes of determining retirement eligibility or computing basic pay. His request specifically identified that the Air Force correctly does not count this time in determining retirement or pay computations. However, the Air Force is incorrect in insisting that this somehow transforms that time into inactive service, or that this somehow authorizes the creation of a break in active duty service on the DD Form 214 where one does not actually exist. The applicant states that he stands to be damaged by the current presentation of information on his DD Form 214. The applicant’s complete response is at Exhibit D. _________________________________________________________________ ADDITIONAL AIR FORCE EVALUATION: SAF/MRB Legal Advisor recommends approval. MRB states that the applicant is entitled to have his time spent while enrolled at USUHS listed as active service, regardless of how it is credited for retirement purposes. The MRB Legal Advisor states that IAW Department of Defense Instruction (DoDI) 1336.01, Certificate of Release or Discharge from Active Duty, the DD Form 214 “will provide an accurate and complete summation of active military personnel service.” Block 12e of the applicant’s DD Form 214 reflects his USUHS time as “inactive service,” however; this is an error under the law. The MRB Legal Advisor states to avoid the risk of improper error, the Board could consider adopting the applicant’s own suggestion. As such, his DD Form 214 could be corrected by adding a brief explanation in Block 18, Remarks, similar to the one already reflected on his DD Form 214 pertaining to his time at the Academy. The MRB Legal Advisor states that correcting Block 12d will require corrections to other blocks on the DD Form 214. The complete MRB Legal Advisory is at Exhibit E. _________________________________________________________________ APPLICANT’S REVIEW OF ADDITIONAL AIR FORCE EVALUATION: On 10 Jul 13, by electronic message, the applicant states that he concurs with the SAF/MRB Legal Advisor’s opinion and does not intend to provide rebuttal comments. The applicant’s complete submission is at Exhibit G. _________________________________________________________________ THE BOARD CONCLUDES THAT: 1. The applicant has exhausted all remedies provided by existing law or regulations. 2. The application was timely filed. 3. Sufficient relevant evidence has been presented to demonstrate the existence of an error or injustice. We note AFPC/DPSIPV recommends denial and states that based on the law, the time the applicant served as a member in USUHS is not creditable service for retirement eligibility, nor is he eligible to receive active duty credit towards his Total Active Federal Military Service (TAFMS). However, after a careful review of the available evidence, we believe relief is warranted. In this respect, we note the MRB Legal Advisor, states the applicant’s time spent at USUHS should be reflected as active service, regardless of how it is credited for retirement purposes, and he should be entitled to a correct DD Form 214. Therefore, to avoid the risk of improper credit, we recommend his DD Form 214 be amended in the remarks section or applicable blocks as necessary to document his attendance at the Uniformed Services University Health Sciences in an active duty status from 6 Aug 04 to 28 Sept 05. In view of the above, we recommend his record be corrected to the extent indicated below. 4. The applicant’s case has been adequately documented and it has not been shown that a personal appearance with or without counsel will materially add to our understanding of the issues involved. Therefore, the request for a hearing is not favorably considered. ________________________________________________________________ THE BOARD RECOMMENDS THAT: The pertinent military records of the Department of the Air Force relating to APPLICANT be corrected to show that his DD Form 214, Certificate of Release or Discharge from Active Duty, issued in conjunction with his 2 June 2012, release from active duty, be, and hereby is, amended in the remarks section or applicable blocks as necessary to document his attendance at the Uniformed Services University of the Health Sciences in an active duty status, in accordance with Title 10, United States Code, Section 2114(b), from 6 August 2004 to 28 September 2005, though not creditable for retirement under Title 10, United States Code, Section 641. ________________________________________________________________ The following members of the Board considered AFBCMR Docket Number BC-2012-01425 in Executive Session on 27 Aug 13, under the provisions of AFI 36-2603: All members voted to correct the record as indicated. The following documentary evidence was considered: Exhibit A. DD Form 149, dated 13 Apr 12, w/atchs. Exhibit B. Letter, AFPC/DPSIPV, dated 23 May 12, w/atchs. Exhibit C. Letter, SAF/MRBR, dated 19 Jun 12. Exhibit D. Letter, Applicant, dated 23 May 12 {sic}. Exhibit E. Letter, SAF/MRB, dated 21 May 2013. Exhibit F. Letter, SAF/MRBC, dated 24 May 13, Exhibit G. Email, SAF/MRBC, dated 9 Jul 13. Exhibit H. Email, Applicant, dated 9 Jul 13. Panel Chair 6 5