MEMORANDUM OF CONSIDERATION

	IN THE CASE OF

	BOARD DATE:            19 August 2003   
	DOCKET NUMBER:    AR2003086390

	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. Fred N. Eichorn 		Chairperson	
	Ms. Margaret V. Thompson 		Member	
	Mr. John T. Meixell		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 his Pay Entry Basic Date (PBED) be adjusted to include the time he spent in the Delayed Entry Program (DEP).

APPLICANT STATES:  In effect, he requests his DEP time be cancelled and that his record show no break in service during this period.  He states that he believes his PEBD should have been computed correctly upon his entrance on active duty with the Regular Army (RA).  In support of his application, he provides a copy of a Statement of Service (DA Form 1506), a Report of Separation (NGB Form 22) from the Army National Guard (ARNG), and an ARNG Retirement Points Credits Record.

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

As of the date of his application to this Board, he was serving on active duty in the RA in the rank of master sergeant (MSG).  On 1 February 1984, he initially enlisted in the ARNG.  He continuously served in that status until being honorably discharged on 19 September 1985, in order to enlist in the RA.  The NGB Form 22 issued to him upon his completion of this period of ARNG service confirms that he completed a total of 1 year, 7 months, and 19 days of service for pay purposes.  

An enlistment contract (DD Form 4) on file in the applicant’s record confirms that he enlisted in the United States Army Reserve (USAR) DEP on 20 September 1985, and remained in that status for two months until 20 November 1985, when he was discharged from the DEP and entered the RA.  

A DA Form 1506 provided by the applicant lists his various periods of active and inactive service in the ARNG, in the DEP, and in the RA.  This document indicates that his Basic Active Service Date (BASD) is 19 June 1985 and his PEBD is 1 April 1984.  

In connection with the processing of this case, an advisory opinion was obtained from the Chief, Policy Liaison and Procedures Branch, Defense Finance and Accounting Service (DFAS), Indianapolis, Indiana.  This DFAS official stated that by law and regulation, service in the DEP between 1 January 1985 and 
28 November 1989 is not creditable service.  As a result the applicant’s PEBD is correct and no additional time should be granted.  

The applicant was provided a copy of the DFAS advisory opinion and responded on 29 May 2003.  He stated that his initial record showed that his PEBD was wrong and it should have been computed correctly upon his entrance on active duty in November 1985.  He claims he never realized that his time was not computed correctly until the Military Personnel Office recently discovered the error.  He states that since the time he entered active duty his PEBD was noted as February 1984 and not April 1984.  He states that he has made repeated attempts to correct his record to include the time he served in the ARNG, which he was finally able to do.  However, when that correction was finally made, it was discovered that his PEBD was incorrect.  He further states that he should not be held financially responsible for an error that occurred at the beginning of his active duty service because he never had any intention to defraud or to use this error to his advantage.  

The Department of Defense (DOD) Financial Management Regulation, Volume 7A, provides statutory provisions for entitlements, deductions, and collections, and establishes DOD policy for pay and allowances for military personnel.  Paragraph 0101 provides the policy for creditable service.  Paragraph 010101, sub-paragraph D13A states in pertinent part, that for enlistments in a Reserve Component including enlistments in the DEP that were entered into between 
1 January 1985 and 28 November 1989, the period served in the Reserve Component before beginning active duty or initial period of active duty for training is not creditable.  

Army Regulation 600-4 provides instructions for submitting and processing applications for remission or cancellation of indebtedness to the United States  Army.  Applications must be based on injustice, hardship, or both. This includes debts caused by errors in pay to or on behalf of a soldier.  Chapter 3 provides the administrative procedures for submitting an application for remission/cancellation of indebtedness.

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 his PEBD should be corrected to show no break in service based on the time he spent in the DEP.  However, it finds an insufficient evidentiary basis to support this claim.  

2.  By law and regulation, time spent in the DEP between 1 January 1985 and 
28 November 1989 is not creditable for PEBD purposes.  The evidence of record confirms the applicant was in the DEP for the two month period between 
20 September 1985 and 20 November 1985.  Thus, the Board finds that his service in the DEP is not creditable for pay purposes and no adjustment to his PEBD is appropriate.  
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.  The Board considered the applicant’s claim that he should not be held financially responsible for an error that occurred at the beginning of his Army service.  If the applicant believes he has suffered an injustice or hardship as a result of a pay action taken based on the error in his PEBD, he should pursue an administrative remedy under the provisions of Army Regulation 600-4.  If once he has exhausted this administrative remedy, he still believes an error or injustice exists, he may reapply to this Board for consideration of that issue.  

5.  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

___MVT__  ___FE__  ___JM __  DENY APPLICATION

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

INDEX

CASE ID	AR2003086390	
SUFFIX		
RECON		
DATE BOARDED	2003/08DD	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON	N/A	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  231	112.0900	
2.		
3.		
4.		
5.		
6.