RECORD OF PROCEEDINGS
AIR FORCE BOARD FOR CORRECTION OF MILITARY RECORDS

IN THE MATTER OF: 			DOCKET NUMBER: BC-2015-04569

						COUNSEL:  NONE

						HEARING DESIRED:  NO 

APPLICANT REQUESTS THAT:

1.  His retired pay be recomputed based on 21 years, 7 months and 15 days of service rather than 21 years, 1 month and 15 days of service.

2.  The Defense Finance and Accounting Service (DFAS) office conduct an audit of his retired pay computations to include recalculation of his retired pay commencing 1 August 2008.

APPLICANT CONTENDS THAT:

His service in the Health Profession Scholarship Program (HPSP) from 1983 to 1987 was not included in the computation for his retired pay.  He should have received credit for six months of service for his participation in the HPSP.  His total time for creditable service for computing his retired pay should have been 21 years, 7 months and 15 days.

Per DoD 7000.11R, Financial Management Regulation, Volume 7B, Chapter 1, August 2012, paragraph 1003, Service Creditable for Computing Retired Pay, sub-paragraph 010303, Voluntary Retirement Commissioned Officers, sub-paragraph D. states in part that Years of service not included in subparagraphs 010303. A, B, or C, with which members would be entitled to be credited under 10 USC 12733. 

He served three years, eight months and five days in the HPSP program from October 1983 until June 1987.  Each year of HPSP service included a 45-day active duty term.  Total serviceable credit = 60 days x 3 years = 180 days (6 months).

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

STATEMENT OF FACTS:

On 12 October 1983, the applicant was commissioned as a second lieutenant (2Lt) Air Force Reserve Officer in the HPSP.  

On 1 August 2008, he retired and was credited with 21 years, 1 month, and 15 days of active service.   

The remaining relevant facts pertaining to this application are contained in the memorandum prepared by the Air Force office of primary responsibility (OPR), which is attached at Exhibit C.    

AIR FORCE EVALUATION:

AFPC/DP2LT recommends partially granting the applicant’s request.

Per DoD 7000.14-R, FMR, Volume 7B, Chapter 1, paragraph 010301B, crediting the active duty pay for doctors and dentist with constructive service credit for their degree and or internship is not authorized if the individual started their degree program after 14 September 1981.  For these individuals, the time is creditable in computing retired pay provided the officer is retirement eligible.  Service creditable in computing retired pay should include time an officer served in the Uniformed Services University of Health Sciences (USUHS).  For an officer of the Medical Corps or Dental Corps of the Army or Navy, an officer of the Air Force designated as a medical or dental officer, or an officer of the Public Health Service commissioned as a medical or dental officer, credit actual time served in the program.  

It then states in sub-paragraph D, Years of service not included in subparagraphs 010303 A, B, or C, with which the member was entitled to be credited under 10 USC, Subtitle E, Part II, Chapter 1223, sub-section 12733, Computation of retired pay: computation of years of service (Reserve Components, Personnel Generally, Retirement Pay for Non-Regular Service).  In sub-paragraph D3, it states “One day for each point, but not more than 130 days in any year of service that includes 30 October 2007, and in any subsequent year of service credited for attendance at drills or periods of equivalent instruction prescribed that year by the Secretary concerned that conform to requirements by law OR credited as service in the Health Professions Scholarship and Financial Assistance Program (FAP) under 10 U.S.C 2126.”  Sub-paragraph D3 continues with maximum points for other periods of time prior to October 2007 for retirement points for traditional reservists.

However for individuals who obtained their medical and dental degrees under HPSP or had continued education under the FAP, title 10 U.S.C 2126 b (3) states “the number of points credited to a member under paragraph (1) of this subsection for a year of participation in the course of study (HPSP or FAP) is 50.”  In the next paragraph (4) it states, “Service may not be counted under paragraph (1) for more than 4 years of participation in a course of study as a member of the program”.   Also Section 2126 paragraph (a) states “service performed while a member of the program shall not be counted (1) in determining eligibility for retirement; or (2) in computing years of service creditable under Section 205 Title 37.

Recommend the applicant be awarded 50 points per completed academic year in the HPSP towards his 1405 date (retirement pay multiplier) per Title 10 U.S.C, Section 2126.  By awarding the additional 5 months, his 1405 date would change to 9 January 1987, and would  change his “Service per 10 USC 1405” period on his retirement orders to 21 years, 6 months, and 22 days.  Recommend denial for the portion of the applicant request to add his HPSP required 45-day tours of active duty to his years of active duty service as this time is not creditable service for total active federal military service. 

A complete copy of the AFPC/DP2LT evaluation, with attachments, is at Exhibit C.

APPLICANT'S REVIEW OF AIR FORCE EVALUATION:

He is not requesting that his active duty time served while on HPSP be credited in determining eligibility for retirement.  He earned his retirement based on 21 years of active service in the USAF.  He is only requesting creditable service towards his 1405 (retirement pay multiplier) date.

10 USC, 2126, (b) (3) was cited as the source for creditable service for the completion of HPSP as 50 points per year.  However, the DOD Financial Management Regulation states that creditable service is also awarded based on service in an Armed Service Reserve Component. Sub-paragraph 010303, D., 3, defines years of creditable service as (edited) "One day for each point credited for attendance at drills or periods of equivalent instruction prescribed that year by the Secretary concerned that conform to requirements by law or credited as service in the HPSP and FAP under 10 USC 2126.  Before 23 September 1996, the maximum was 60 days.  The credit includes points at the rate of 15 per year for membership in a Reserve Component of an Armed Force."  Per this regulation, he earned 15 points for membership in a Reserve Component (USAF Reserves) per year of creditable service towards his 1405 date (retirement pay multiplier).  He was a commissioned officer in the USAF Reserves throughout his time in HPSP (3 years and 8 months).

He also served 45 days of active service each year while in HPSP and this service is creditable under DoD 7000.llR, sub-paragraph 010303, D. 1. Days of active service or D.3. One day for each point credited for attendance at drills or periods of equivalent instruction prescribed that year by the Secretary concerned that conform to requirements by law or credited as service in the HPSP and FAP under 10 USC 2126.

The total the points earned from these three sources, 1) 50 points from HPSP completion per 10 USC, 2126, 2) 15 points for membership in a Reserve Component from DoD 7000.llR and 3) 45 points from active duty service tours from DoD 7000.llR, sum to more than the 60 allowable yearly total points.  Thus, the total points allowed would be equal to 60 points per year towards his 1405 date (retirement pay multiplier) or 180 days (60 days x 3 years) in total.  This would result in 6 months of additional creditable time for retirement pay multiplier purpose rather than the 5 months recommended by the Advisory opinion.

A copy of the applicant’s complete response is at Exhibit E.

ADDITIONAL AIR FORCE EVALUATION:

AFPC/DP2LT recommends denying the requested relief.

On 12 October 1983, the applicant was commissioned as a 2Lt in the Medical Service Corps (MSC).  On 28 January 1987, he was commissioned as a Reserve captain (Capt) and completed his medical requirements on 8 June 1987.  On 16 June 1987, he entered extended active duty.  He was discharged on 31 July 2008 for the purpose of retirement effective 1 August 2008, and was credited with 21 years, 1 month, and 15 days of continuous active duty service.

The Service Dates Verification Branch contacted the Air Reserve Personnel Center Points Management Branch (ARPC/DPTSP) regarding the applicant’s request for point credit for the time he spent in HPSP.  ARPC/DPTSP provided a copy of a policy memorandum from the Office of the Assistant Secretary of Defense titled “Policy Guidance on Reserve Service Credit for Participation in DoD Health Professions Scholarship and Financial Assistance Program.”  This memorandum provides guidance for the implementation of Title 10 U.S.C, section 2126(b), Service Creditable for Certain Purposes, as amended by Section 544 of the National Defense Authorization Act for Fiscal Year 2000 (NDAA FY 00).  This section permits service performed by Armed Forces HPSP and FAP participants who meet the eligibility criteria described below to be counted for retirement points and years of satisfactory service for Reserve retirement under of Title 10 USC, Chapter 1223. - Retired pay for Non-Regular Service.

Per this directive, service credit may be awarded to program participants provided they serve in the Selected Reserves (service members in the AF Reserve and Air National Guard who train regularly and are paid for their training in unit or individual programs) after completing the active duty service obligation incurred for receiving program benefits and serve in a skill critically needed in wartime, as determined by the Secretary concerned.  For each year a former program (HPSP or FAP) participant performs satisfactory service in the Selected Reserve, the service member shall be credited with the 50 retirement points and one year of service credit for retirement  purposes under Title 10 USC, Chapter 1223, Section 12732 (a)(2) - Entitlement to Retired Pay:  Computation of Years of Service.  In accordance with this guidance, individuals who have never served with the Selected Reserves are not entitled to credit for HPSP or FAP towards their retired pay for Regular service.  The 45 days per year performed by the applicant is a requirement of the program and is not creditable towards retirement or longevity pay per Title 10 Section 2126 (a).

The applicant would have had to serve in the Selected Reserves after completing his active duty obligation to receive point credit for his time in HPSP.  The applicant was not a member of the Selected Reserves during his time in HPSP.

A complete copy of the AFPC/DP2LT evaluation, with attachments, is at Exhibit F.

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

The policy referenced in the 17 January 2017 advisory does apply to him.  He was commissioned as a Reserve officer while in HPSP, but was then granted a Regular commission and subsequently retired as a Regular officer with a Regular retirement.

The Office of Assistant Secretary of Defense, memorandum “Credit for Time Served at the Uniformed Service University of the Health Sciences (USUHS) in computing Military Retired and Retainer Pay” serves as the authority of benefits for USUHS participants.  Specifically, paragraph one states that "10 USC 2114(b) provides that the exclusions of 10 USC 2126 applicable to students in the Health Professions Scholarship Program are also applicable to USUHS medical students.  These exclusions relate to (1) determination of the applicable rate of basic pay under 37 USC 205 (longevity) and (2) determination of eligibility for retirement.  There is no exclusion, in this or any other section of law, with respect to the computation of retired pay.  The last sentence of the paragraph implies that years of service in HPSP are creditable in computing retired pay under DoD 7000.14-R, Financial Management Regulation, Chapter 7B, paragraph 010303, D3, which is the basis for his claim.

The total points earned from 1) 50 points from HPSP completion per 10 USC, 2126, 2) 15 points for membership in a Reserve Component from DoD 7000.llR and 3) 45 points from active duty service tours from DoD 7000.llR, sum to more than the 60 allowable yearly total points.  This would equal to 60 points per year towards his 1405 date (retirement pay multiplier) or 180 days (60 days x 3 years) in total.  This would result in 6 months of additional creditable time for retirement pay multiplier purposes. 

A copy of the applicant’s complete response, with attachments, is at Exhibit H.

ADDITIONAL AIR FORCE EVALUATION:

AFPC/DP2LT recommends denying the requested relief indicating there is no evidence of an error or injustice.

Under the provisions of Title 10, Section 2121 individuals pursuing a course of study shall serve on active duty in pay grade O-1 with full pay and allowances of that grade for a period of 45 days each year of participation in the program.  Since this required period of active duty service is performed as a member of the program, it is not creditable service and does not count towards retirement (total active service) as stated in Title 10, Section 2126.  Under this same title, the entire period of time spent in the program is not creditable in computing years of creditable service for pay under Title 37, Section 205.

Per DoD 7000.14-R, Financial Management Regulation, Volume 7B, Chapter 1, Paragraph 0103, Service Creditable for Computing Retired Pay, Subparagraph 010301 Service for  Percentage Multiple, service authorized to be used as a percentage multiple is specified in each law section authorizing computation of retired pay for each type of retirement.  Subparagraph 010303, Voluntary Retirement of Commissioned Officers, lists the types of creditable service for the computation of the percentage multiple: active service, years of service with which a member is entitled to be credited in computing basic pay; years of service with which a member would be entitled to be credited for non-regular (reserve) retirement pay in accordance with Title 10, Chapter 1223, Section 12733.  The applicant contends that he is entitled to credit under paragraph D3 which basically states to credit one day for each point for attendance at drills or periods of equivalent instruction prescribed that year by the Secretary concerned that conform to requirements by law or credited as service in the HPSP and Financial Assistance Program under Title 10, Section 2126.  Under 2126, the Secretary concerned may authorize service performed by a member of the program to be counted as creditable service.  The OASD memorandum dated 17 October 2000 provided in our 17 January 2017 response provides the policy guidance for awarding service credit for participation in HPSP under section 2126.  In accordance with OASD, individuals may be awarded service credit if they serve in the Selected Reserves after completing their active duty service obligation incurred from their participation in HPSP, and serve in a skill critically needed in wartime.  The applicant entered active duty on 16 June 1987 and served continuously until he retired from the Regular Air Force in 2008.  With that said, he did not serve in the Selected Reserves upon completion of his active duty service commitment; thus, he was not awarded any service credit for his time spent in HPSP as outlined in the OASD.

Since the periods of active duty service and the years of service in HPSP are not counted as creditable service in accordance with Section 2126, and service credit was not awarded in accordance with the OASD memo, the applicant is not entitled to additional credit towards his retirement pay computation.

A complete copy of the AFPC/DP2LT evaluation, with attachments, is at Exhibit I.

APPLICANT'S REVIEW OF ADDITIONAL AIR FORCE EVALUATION:

The applicant reiterates his arguments to the previous advisories to have his retired pay recalculated based on his time in the HPSP.

He further notes the exclusions of 10 USC 2126 to applicable students in HPSP does not include an exclusion regarding computation of their retired pay.  The failure to credit his service in HPSP is a failure to follow the Service Secretary's guidance as specifically authorized by 10 USC 2126.  Furthermore, to deny credit for HPSP is a disservice to the field in that it further muddies the guidance issued by the Service Secretary.  If his request is not granted he strongly suggests additional clarifying guidance be issued by the Secretary's office concerned.

The total points earned towards creditable time for his retirement pay multiplier per year are 1) 50 points from HPSP completion, 2) 45 points from active duty service tours, 3) 15 points for membership in a Reserve Component and 4) 45 points for days of active service.  Since these amounts sum to more than the 60 allowable yearly total points, the award would be capped at 60 points per year.  This would equal 60 points (days) per year towards his 1405 date (retirement pay multiplier) or 180 days {60 days x 3 years) in total. This would result in 6 months of additional creditable time for retirement pay multiplier purposes.

A copy of the applicant’s complete response, with attachment, is at Exhibit K.

THE BOARD CONCLUDES THAT:

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

2.  The application was timely filed.

3.  Insufficient relevant evidence has been presented to demonstrate the existence of an error or injustice.  We note the OPR initially recommended the application be partially approved.  However, in additional advisory opinions, the OPR reversed its decision and states the applicant is not entitled to additional credit towards his retirement pay computation.  While the applicant’s contentions are duly noted; his case has undergone an exhaustive review by the Air Force OPR and we do not find the evidence provided by the applicant sufficient to overcome their assessment of the case.  Therefore, we agree with the revised opinions and recommendations of the Air Force OPR and adopt the rationale expressed as the basis for our conclusion the applicant has failed to sustain his burden that he has suffered either an error or an injustice.  With respect to the applicant’s request for an audit of his retired pay computations to include recalculation of his retired pay.  The Board is only empowered to correct records and his request for an audit is outside the Boards purview. As such, the applicant should contact DFAS at 800-321-1080 or www.dfas.mil.  In view of the above and in the absence of evidence he was denied rights to which he was entitled, we find no basis to recommend granting the relief sought in this application.

THE BOARD DETERMINES THAT:

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

The following members of the Board considered AFBCMR Docket Number BC-2015-04569 in Executive Session on 27 September 2016, 3 May 2017 and 19 September 2017, under the provisions of AFI 36-2603:

	, Panel Chair
	, Member
	, Member

The following documentary evidence pertaining to AFBCMR Docket Number BC-2015-04569 was considered:

	Exhibit A.  DD Form 149, dated 22 Oct 15, w/atchs.
	Exhibit B.  Applicant's Master Personnel Records.
	Exhibit C.  Memorandum, AFPC/DP2LT, dated 26 Apr 16, w/atchs.
	Exhibit D.  Letter, AFBCMR, dated 8 Jun 16.
	Exhibit E.  Letter, Applicant, dated 23 Jun 16.
	Exhibit F.  Memorandum, AFPC/DP2LT, 17 Jan 17, w/atchs.
	Exhibit G.  Letter, AFBCMR, dated 25 Jan 17.
	Exhibit H.  Letter, Applicant, dated 20 Feb 17, w/atchs.
	Exhibit I.  Memorandum, AFPC/DP2LT, 20 Jul 17, w/atchs.
	Exhibit J.  Letter, AFBCMR, dated, 21 Jul 17.
	Exhibit K.  Letter, Applicant, dated, 18 Aug 17, w/atch.

Pursuant to paragraph 1 of AFI 36-2603 (Title 32 Code of Federal Regulations, Part 865.1), it is certified that a quorum was present at the Board's review and deliberations, and that the foregoing is a true and complete record of the Board's proceedings in the above entitled matter.