PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           10 February 1999                   
	DOCKET NUMBER:   AC98-11894
				   AR1998012577

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Loren G. Harrell		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Patrick Bogenberger		Chairperson	
	Mr. Elzey J. Arledge, Jr.		Member	
	Mr. Gary F. Geraets		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.
2.	
The applicant requests that his pay entry basic date (PEBD) be adjusted due to his membership in the Simultaneous Membership Program (SMP).  He also requests that he be paid the family separation pay or basic allowance for quarters (BAQ) at the with dependents rate for the time he was in Korea and his spouse had separated from the Army.

3.  The applicant’s military records show that he had prior enlisted service in the Regular Army from 10 October 1978 – 9 October 1982.  He was discharged from the U. S. Army Reserve on 13 June 1984.  He enlisted in the Army National Guard on 7 August 1984 and on that date he enrolled in the Simultaneous Membership Program.  On 10 May 1986, he was discharged to accept a commission in the U. S. Army National Guard and entered active duty on 11 May 1986.  On 31 May 1997, he retired, in pay grade O-3, after completing 15 years, 1 month and 6 days of creditable active federal service (18 years, 6 months and 22 days for pay).

4.  The ROTC/SMP is a voluntary officer training program designed to increase the number of ROTC officers available for Reserve Forces Duty.  Subject to limitations, it permits an ROTC cadet to train in the ROTC Advanced Course while simultaneously participating as an officer-trainee in paid training assemblies with a U. S. Army Reserve troop program unit.  To be eligible for ROTC/SMP participation, a cadet must be enrolled in the ROTC Advanced Course nonscholarship program; be assigned to a verified officer-trainee position in a TPU; meet the Army body composition/weight control standards; and agree to volunteer for commissioning under the provisions of the ROTC Early Commissioning Program on successful completion of the ROTC Advanced Course.

5.  Public Law 104-201, section 507, dated 23 September 1996, amended the provisions of the law to provide service credit for the SMP retroactive to 1 August 1979, when SMP actually began.  The revisions will result in no increase in pay, retired or retainer pay before the date of enactment, 23 September 1996.  If the credit results in a higher basic pay due to a change in the PEBD, the effective date of the increase will be 23 September 1996.

6. Message 161200Z Jan 97, DA Washington DC//DAPE-MPO-S// Subject:  Service Credit for Senior ROTC Cadets and Midshipmen in the Simultaneous Membership Program (SMP), provided policy guidance and authority to recompute the PEBD based on service credit under the SMP.

7.  Phone conversation between this Board and DAPE-MPO-S verified that the basic active service date is not affected by this policy.

8.  The applicant and his spouse, an active duty servicemember, married on     12 February 1988.  On 27 June 1991, he received orders to report to Korea not later than 6 August 1991.  His orders noted that joint domicile had been approved.  His spouse separated from the military on 12 September 1991.  Apparently, her decision was not made in time for his orders to be amended.  His reassignment orders back to CONUS noted his availability date as 30 June 1992. No dependent information is noted on his orders.  He and his spouse were divorced on 10 July 1992.

9.  The Department of Defense Financial Management Regulation (DODFMR) provides that a member with dependents is entitled to BAQ at the rates prescribed for members with dependents when the dependents do not accompany the member to the permanent duty station.  A member’s lawful spouse is at all times considered a dependent for BAQ purposes.  A determination of relationship is required, but usually a determination of dependency is not.  Family separation allowance (FSA) is payable only to members with dependents.  Two types are authorized, Type I and Type II.  Both types are payable in addition to any other allowances to which a member may be entitled.  The purpose of FSA is to pay a member for additional housing expenses caused by enforced separation from his/her dependents.

10.  Army Regulation 614-30 states that Korea is a “short” (dependent restricted)
overseas tour.

CONCLUSIONS:

1.  There is evidence in the records to show the applicant was in the SMP from   7 August 1984 until 10 May 1986.  He meets the eligibility requirements to have his membership time in the SMP (1 year, 9 months and 4 days) credited towards his PEBD.

2.	At the time the applicant received orders reassigning him to Korea, his spouse was an active duty member and they were scheduled for a joint domicile assignment.  His spouse did not accompany him to Korea and instead separated from the service on 12 September 1991.  While he was in Korea, he received partial BAQ and/or a rebate of $22.20 per month.  He and his spouse remained married until approximately two weeks after he departed Korea. 

3.  The DODFMR states that a (non-servicemember) spouse is considered at all times a dependent for BAQ purposes and that a member is entitled to BAQ at the with dependents rate when those dependents do not accompany the member to his/her permanent duty station.  It also states that the purpose of FSA is to pay a member for additional housing expenses caused by enforced separation from his/her dependents.  (Army Regulation 614-30 states that Korea is a dependent-restricted tour).
4.  The evidence of record indicates that the applicant should have received both BAQ at the dependents rate and FSA while he was assigned to Korea, effective  12 September 1991, the date his spouse separated from the service.

5.  In view of the foregoing, it would be in the interest of justice to correct the applicant’s records as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by showing:

    a.  that the applicant retired with 20 years, 6 month and 26 days of service for basic pay; 

     b.  that the applicant receive back active duty pay and allowances for the period 23 September 1996 – 31 May 1997 due him because of this adjustment; 

     c.  that the applicant’s retired pay be increased effective 1 June 1997 and he receive any back retired pay due him because of this adjustment; and

     d.  that the applicant was entitled to receive BAQ at the appropriate with dependents rate and family separation allowance rate for the period                  12 September 1991 – 30 June 1992 when he was assigned to Korea and that he receive any monies due him because of this entitlement, taking into consideration his receipt of a monthly partial BAQ during this period.

BOARD VOTE:  

___PB__  __EJA___  __GFG___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Patrick Bogenberger
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AC98-11894/AR1998012577	
SUFFIX		
RECON		
DATE BOARDED	19990210	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	128.01	
2.	128.12	
3.	128.15	
4.		
5.		
6.