MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           25 June 2002
	DOCKET NUMBER:   AR2002071761

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

	Mr. Carl W. S. Chun		Director	
	Mr. Joseph A. Adriance		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Elzey J. Arledge, Jr.		Member	
	Mr. Thomas Lanyi		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

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

APPLICANT REQUESTS:  In effect, that he receive time in service credit for his  3rd and 4th years at the United States Military Academy (USMA), West Point, New York.

APPLICANT STATES:  In effect, that the 3rd and 4th years of his education at the USMA carried with them an obligation to serve a five year military commitment, and as such, these years were voluntary.  As is commonly known, attendance at the USMA required adherence to a strict, regimented military system as outlined in official Army regulations.  As a cadet, one is subject to the Uniform Code of Military Justice (UCMJ), and he claims that during the 3rd and 4th years, one is a soldier, bound legally to the Army.  Therefore, he contends this time should be credited as time in service.  Finally, he requests that all his records be revised and updated to reflect this extra two years time in service. 

EVIDENCE OF RECORD:  The applicant's military records show:

On 23 May 1984, while at the USMA, West Point, he was appointed a Engineer Corps second lieutenant (2LT) in the Army of the United States (AUS).  He immediately entered active duty and served for 2 years, 3 months, and 6 days until being honorably separated and transferred to the United States Army Reserve (USAR) on 28 August 1986.  The authority for the applicant’s separation was chapter 3, Army Regulation 635-120, and the reason was unqualified resignation. 

On 18 June 1990, subsequent to his appointment as a captain in the Medical Corps (MC) of the USAR on 26 May 1990, he entered active duty on his last period of active duty service.  On 25 March 2002, he was honorably discharged from this period of service.  The DD Form 214 issued to him at the time confirms that he held the rank lieutenant colonel (LTC) and that he was still serving as a USAR MC officer.  

In connection with the processing of this case, an advisory opinion was requested of and received from the Chief, Officer Retirements and Separations Section, United States Total Army Personnel Command (PERSCOM), dated 
29 April 2002.  It indicates that in accordance with Title 10 of the United States Code, section 971 (10 USC 971), the period of service under an enlistment or period of obligated service while also performing service as a cadet or midshipman or service as a midshipman in the Naval Reserve may not be counted in computing, for any purpose, the length of service of an officer of an Armed Force or an officer of the commissioned officer corps of the Public Health Service.  Also Department of Defense Financial Management Regulation (DODFMR), Volume 7B, chapter 1, paragraph 010203 (J), dated October 2000, states that time spent at an Academy as a cadet or midshipman is not creditable service.  

On 6 May 2002, a copy of the PERSCOM advisory opinion was provided to the applicant in order to provide him an opportunity to respond.  To date, he has failed to reply.

10 USC 971 contains legal guidance on the prohibition on counting enlisted service performed while at a Service Academy or in the Naval Reserve.  It states that the period of service under an enlistment or period of obligated service while also performing service as a cadet or midshipman or serving as a midshipman in the Naval Reserve may not be counted in computing, for any purpose, the length of service of an officer of an armed force or an officer in the Commissioned Corps of the Public Health Service.  It further stipulates, in pertinent part, that for the purpose of applying this section of the law, the ''service as a cadet or midshipman'' means service as a cadet at the United States Military Academy, United States Air Force Academy, or United States Coast Guard Academy.

Department of Defense Financial Management Regulation (DODFMR), Volume 
7 provides the policy and procedure for military pay; Volume 7B, chapter 1, paragraph 010 provides guidance on creditable service and paragraph 010203 contains a list of some of the most common periods that are not counted as creditable service.  Sub-paragraph (J) states specifically that service as a cadet or midshipman at the USMA or the United States Naval Academy under an appointment accepted after 25 June 1956 is not creditable service.  

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1.  The Board notes the applicant’s contention that because during his 3rd and 
4th year at the USMA he became obligated to serve a five year military commitment, was committed to a strict regimented military system as outlined in official Army regulations, and was subject to the UCMJ, which bound him legally to the Army, this time should be reflected as time in service.  However, it finds an insufficient evidentiary basis to grant this requested relief. 

2.  By law and regulation, service performed as a cadet at the USMA may not be counted in computing, for any purpose, the length of service of an officer of an armed force.  Further, that service as a cadet at the USMA under an appointment accepted after 25 June 1956 is not creditable service.  Therefore, the Board finds the 3rd and 4th year of the applicant’s service as a cadet at the USMA cannot be legally credited as time in service.  

3.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.
4.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__JNS__  __EJA__  __TL___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2002071761	
SUFFIX		
RECON		
DATE BOARDED	2002/06/25	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	2002/03/25	
DISCHARGE AUTHORITY	AR 600-8-24 C3	
DISCHARGE REASON	Misc/General Reasons	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  22	102.0800	
2.		
3.		
4.		
5.		
6.