BOARD DATE: 15 July 2014 DOCKET NUMBER: AR20130019886 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, that his ARPC Form 249-E (Chronological Statement of Retirement Points) be adjusted to reflect additional retirement points for his service in the Naval Academy. 2. He states the denial of his retirement credit for his attendance at the Naval Academy violated pertinent statutes, regulations, and precedents. 3. He provides: * ARPC Form 249-E, dated 25 August 2010 * U.S. Government Accountability Office, B-195448, dated 3 April 1980 * U.S. Army Human Resources Command (HRC) initial denial of the applicant's request, dated 4 January 2008 * Applicant's requests for additional retirement points, dated 26 September 2012, with HRC response, dated 25 October 2012 * Department of Defense Instructions (DODI) 1215.07, dated 18 November 2005 * Excerpts from the "Shipmate," dated June - July 2007 * Memorandum, Subject: Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter), dated 29 September 2005 * various email messages * U.S. Naval Academy letter, dated 5 June 2012 * Congressional correspondence * Excerpts from Army Regulation 135-180 (Qualifying Service for Retired Pay Nonregular Service) * Excerpts from DOD Financial Management Regulation (FMR), Volume 7B * DA Form 368 (Request for Conditional Release), dated 26 August 2002 * USAR Enlistment Documents * DA Form 638 (Recommendation for Award), dated 4 March 2007 * DA Form 2166-8 (Noncommissioned Officer Evaluation Report) * Facsimile Coversheet, dated 10 January 2013 * Orders P09-791464, dated 18 September 2007 * Orders P09-791464A01, dated 24 September 2007 * Orders T-09-613251A04, dated 18 July 2007 * Orders T-09-613251A03, dated 27 February 2007 * Orders T-09-613251A02, dated 29 November 2006 * Orders T-09-613251A01, dated 5 October 2006 * Orders T-09-613251, dated 29 September 2006 * Orders D-10-721791, dated 16 October 2007 * Orders D-10-720994, dated 2 October 2007 CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. After having prior commissioned service in the U.S. Navy, on 30 August 1984, he was commissioned in the U.S. Coast Guard (USCG). He was honorably released from the USCG on 31 August 1984 and transferred to the U.S. Navy Reserve (USNR) on 1 July 1985. He was honorably retired from the USNR on 25 August 2002 and credited with 16 qualifying years of service and transferred to the Naval Retired Reserve. His date of birth is listed as 23 September 1947. 3. On 26 August 2002, the applicant enlisted in the U.S. Army Reserve (USAR) in the grade of sergeant (SGT)/E-5. He was promoted to staff sergeant (SSG)E-6 on 27 June 2003. 4. On 29 September 2005, he was notified of his eligibility for retired pay at age 60 (20-year letter). 5. Orders 07-171-0027, dated 20 June 2007, show that effective 27 July 2007 the applicant was voluntarily reassigned to the USAR Control Group (Reinforcement). His standard name line shows his rank as SSG/E-6. Orders 07-171-00028, dated 20 June 2007, revoked those orders. 6. A DD Form 108 (Application for Retired Pay Benefits) shows that on 22 June 2007 the applicant requested, in effect, to be retired in the grade of major (MAJ)/O-4. 7. Orders P09-791464, dated 18 September 2007, with amendment (P09-791464A01, dated 24 September 2007), show he was retired and placed on the Army of the United States Retired List effective 1 October 2007, in the retired grade of MAJ/O-4. 8. On 1 October 2007, he was honorably retired. His ARPC Form 249-E shows his military personnel class as enlisted and he was credited with a total of 22 years, 9 months, and 3 days of qualifying service for a nonregular retirement with 5221 creditable points. 9. In a letter from the U.S. Naval Academy, dated 5 June 2012, the Assistant Registrar certified that the applicant was a student at the academy from 29 June 1966 until 3 June 1970. She said while in attendance, midshipmen are considered active duty members of the U.S. Navy. 10. On 4 January 2008, the Chief, Transition and Separations, HRC, responded to the applicant's request that his midshipman time at the U.S. Naval Academy, 1,435 days, be added to his total military service time for retired pay at age 60. a. The representative stated that he had thoroughly read the applicant's petition and references, as well as the attachments provided, and his original decision was still applicable to his situation. He said Title 10, U.S. Code, chapter 49, section 971 and DoD FMR-R Volume 7A states that Academy service time does not count for officers. He added that the applicant requested retirement as an officer based on his previous service as a commissioned officer in the Navy and Coast Guard. It was determined that he was entitled to retirement as an officer, retirement orders as a MAJ were published, and the applicant was granted retirement pay based on 36 years of service. b. The representative continued that a review of the pay chart revealed that if he was retired as a SSG/E-6 and given credit for the additional 4 years of service, his retired pay would still be considerably less than that of a MAJ. 11. On 20 September 2012, the applicant requested that HRC retroactively credit him with 1,435 additional retirement points for the time he served on active duty as a midshipman/cadet at a service academy. He states he retired as a SSG/E-6 in the USAR in October 2007. He adds that a few months prior his retirement, he was informed of the law that credits full retirement points for active duty service as a midshipman or cadet at a service academy for all personnel retired as an enlisted Soldier (even if they were advanced to an officer grade on the retired list). He states the Transition and Separation Office, at the former HRC, St. Louis, was asked to credit the additional 1,435 points for his service at the Naval Academy both before and after his retirement, but declined to do so. 12. On 25 October 2012, HRC, returned his request without action due to his service not being creditable as qualifying service. An attached document was provided; however, it is unknown what document was attached. 13. On 10 January 2013, the applicant requested retroactive credit for his service in the Navy Academy. He reiterated the information contained in his letter to HRC, dated 20 September 2012. On 16 July 2013, the Chief, Reserve Component Retirements, HRC, stated that based on the information provided, he was not eligible for retirement points for the time he served in the U.S. Naval Academy. 14. Title 10, U.S. Code, chapter 49, section 971 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 Navy Reserve may not be counted in computing, for any purpose, the length of service of an officer of an armed force. 15. DOD FMR 7000.14-R establishes DOD policy on service which is considered creditable and service which is not creditable for the purpose of determining retirement eligibility. Section 010101 states that service as a cadet or midshipman at a military academy is always creditable service for an enlisted member, but is not creditable service for commissioned officers. DISCUSSION AND CONCLUSIONS: 1. The evidence of record shows the applicant completed his last years of service as an enlisted Soldier in the grade of SSG. However, upon request, orders were published placing him on the retired list in the retired grade of MAJ with an effective date of 1 October 2007. 2. The applicant argues, in effect, that he should be entitled to credit for his attendance at the Naval Academy because he was retired in the grade of SSG/E-6. 3. The evidence of record shows he was never retired as an E-6 or even transferred to the USAR Control Group (Reinforcement) as an E-6. Those orders were revoked and he was placed on the retired list on 1 October 2007 in the grade of MAJ, instead. 4. As explained in Title 10, U.S. Code, chapter 49, section 971 and DOD FMR 7000.14-R, service as a cadet or midshipman at a military academy is not creditable service for commissioned officers. 5. In view of the foregoing, there is an insufficient basis for granting his request. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X____ ___X_____ ___X_ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. __________X________________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20130019886 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20130019886 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1