PROCEEDINGS

	IN THE CASE OF:   

	BOARD DATE:            27 May 1999                  
	DOCKET NUMBER:   AR1999023437

	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	
	Mr. David E. Weightman		Analyst	

  The following members, a quorum, were present:

	Mr. Edward Williamson		Chairperson	
	Ms. Meta Waller		Member	
	Mr. Kenneth L. Wright		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 reinstatement to his previous status in the Regular Army as a lieutenant colonel, and promotion to colonel.

3.  The applicant states he was erroneously considered by the selective early retirement board (SERB) because he did not have 20 years of active duty and not eligible for length of service retirement.  He was erroneously separated from active duty with less than 20 years of active duty for length of service retirement. He is now stuck with owing and having to repay the government for retired pay he initially received for more active duty service than he actually had at separation.  At the time of his separation his Naval DD Form 214 incorrectly showed 7 years of active duty, instead of 2 years and 11 months.

4.  Prior to entering the Army, the applicant’s military records showed that he received 7 years, 1 month and 16 days (sic) of active service while in the Navy, for the period 5 July 1973 (sic) to 21 July 1980.

5.  He was commissioned as a medical doctor in the Army and entered active duty effective 25 August 1980.

6.  He was later promoted to lieutenant colonel in the Regular Army effective 
1 October 1987.

7.  The FY94 SERB reviewed the records of Regular Army lieutenant colonels, who, among other things, were not on a list recommended for promotion, did not have an approved voluntary retirement date or a mandatory retirement date in FY94 or 95, and who had 19 or more years of active duty.

8.  The applicant was selected and notified of the early retirement.

9.  He requested and received length of service retirement effective 30 June 1995, with 21 years, 10 months and 23 days (sic) of active duty service.  This service included 7 years, and 17 days (sic) of his active duty in the Navy, and his 14 years, 10 months and 6 days of active Army service.

10.  On 24 October 1997, Navy officials corrected the applicant’s DD Form 214 issued on 21 July 1980.  The DD Form 214 was corrected to show his period of active duty as 24 July 1977 to 21 July 1980, and 2 years, 11 months and 27 days of net active service.

11.  The net result was completion of 16 years of active duty when considered and selected by the SERB, and completion of 17 years, 10 months and 4 days of active duty upon his retirement on 30 June 1995.

12.  The Chief, Retirements and Separations Branch, Total Army Personnel Command, expressed the opinion that supports the applicant.  He showed that the applicant’s active duty service was erroneously computed at the time based on the incorrect Naval DD Form 214 issued on 21 July 1980.  He also showed the applicant had 17 years, 10 months and 4 days of active duty service on 
30 June 1995, and that he did not have enough service to have retired on that date.  He further stated the applicant’s request should be honored.

13.  The advisory opinion included DA Form 7301 (Officer Service Computation for Retirement), consolidating all of the applicant’s military service.

14.  The opinion was referred to the applicant for his acknowledgment/comment. He has not responded.

CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is entitled to reinstatement to his previous active duty status for the required period of time for qualification and entitlement to length of service retirement with 20 years of active duty service credit.  Through no fault of the Army at the time, the applicant was incorrectly credited with 7 years of active duty Navy service instead of nearly 3, and further, based on that error, he was incorrectly retired for length of service with a total of 21 years.

2.  The Board concludes the applicant should receive constructive active duty service credit of 2 years, and 2 months, by showing he was reinstated to his previous active duty status, and by showing he was retired for length of service of 20 years on 31 August 1997.

3.  The Board further concludes the applicant is entitled to promotion consideration(s) for colonel where appropriate, as though he was on active duty in his previous status until 30 August 1997.

4.  The preceding is supported by the opinion received in this case.

5.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected:

a.  by voiding the length of service retirement on 30 June 1995 of the individual concerned, reinstating him to his previous active duty status;

b.  by placing an adequate explanation in his Official Military Personnel File to show that any gap in his officer evaluation reports from the date of his last report to the date of his return to an active duty status and retirement was not caused by any fault on his part and to ensure that he should not be prejudiced thereby in any future personnel actions;

c.  that, following administrative implementation of the foregoing, by submitting his records to duly constituted special selection boards, and if he is selected for promotion, by promoting him and assigning him an appropriate date of rank; and

d.  by showing he was retired for length of service effective 31 August 1997, with 20 years of active duty service.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

ew______  mw_____  klw _____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AC97-06503/1999023437	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	1999 May 27	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	110	
2.	131	
3.		
4.		
5.		
6.