RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2020-01099

XXXXXXXXXXXXXX	COUNSEL: NONE	

	HEARING REQUESTED: YES	

APPLICANT’S REQUEST

1.	His grade for pay purposes be captain with prior enlisted service (O3-E).

2.	He receive the retroactive prior service pay effective 6 Jan 19.      

APPLICANT’S CONTENTIONS

Per 10 U.S.C. § 12732 and DoD 7000.14-R, Financial Management Regulation, Volume 7A Chapter 1, Paragraph 01023, Commissioned officers may qualify for the  prior service enlisted pay.  Based on his prior enlisted service, he should receive this pay.  He should have entered the Air Force as a first lieutenant with prior enlisted service (O2-E) on 6 Jan 19.  

As stated in DOD 7000.14-R, an officer needs more than 1,460 points computed under 10 U.S.C. § 12732(a)(2).  Based on the computation and his career retirement credit report (CRCR), he has the required creditable service points.  Per 10 U.S.C. § 12732(a)(2), each one year period is credited as 50 points.  The opinion of the Judge Advocate General of the Army states the points for membership are not reduced by active duty.  

He provides a letter from the Department of the Navy, Inactive Reserve Section dated 9 May 19 and CRCR showing active duty points as 1,461, membership points is 60, total points credit is 1,521 and total qualifying service reflects as 5 years.  His active service and inactive service show “000000” and constructive service is “0.”  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is an Air Force captain (O-3).

The applicant’s DD Form 214, Certificate of Release or Discharge from Active Duty, shows he performed a period of active duty in the United States Marine Corps (USMC) from 16 Aug 05 to 15 Aug 09.  He was honorably released from active duty in the grade of corporal (E-4) and was credited with 4 years of active duty service.  Item 18, Remarks, states “Non-creditable Delayed Entry Program time (12 Feb 05 to 15 Aug 05).”

On 6 Jan 19, the applicant was commissioned and entered the Regular Air Force in the grade of first lieutenant (O-2).  

In an e-mail dated 7 Jun 19, AFPC/DP2LT informed the applicant the Defense Finance and Accounting Service (DFAS) general counsel noted that in order to qualify for O1-E pay, he must have had over 4 years of active service as an enlisted member.  The extra day during leap year (2008) does not count.  Per 10 U.S.C. § 12732(a)(2), A leap year represents 1 year of service for basic pay.  Thus, the extra point does not qualify the applicant for having earned the equivalent of over 4 years of active service and he is not eligible for the prior service pay.  

On 27 Oct 20, the BCMR administratively closed his case for failure to exhaust administrative remedy.  

On 27 Mar 21, the applicant requested his case be re-opened and provided e-mail communication with AFPC dated 7 Jun 19 showing he exhausted the available administrative remedy.  

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisory at Exhibit D.

APPLICABLE AUTHORITY/GUIDANCE

DoD 7000.14-R, Financial Management Regulation, Volume 7A, Chapter 1, Paragraph 010203, Active Enlisted and/or Warrant Officer Service for Members in Basic Grades O-1E, O-2E or O-3E. Service Counted.  Commissioned officers with over 4 years of prior active service as an enlisted member, warrant officer, or combined service in both grades are entitled to count such service for purposes of computing basic pay for longevity purposes.  Such prior service includes all active service, in either the Regular or Reserve Component or both (active duty training and inactive duty training and full time National Guard duty, more than 1,460 points)for at least 4 years and 1 day satisfy the over 4 years’ service requirement.  

AIR FORCE EVALUATION

AFPC/DP2LT recommends denial.  The applicant does not have over 4 years of active duty service required under paragraph 010203 and he was not a participating member of the Selected Reserves earning points under 10 U.S.C. §12732(a)(2).  

The applicant enlisted in the USMC Reserve Delayed Entry/Enlistment Program (DEP) on 12 Feb 05 and was discharged on 15 Aug 05 for the purpose of enlisting in the Regular USMC on 16 Aug 05.  Time spent in DEP is not creditable service for pay; thus this period of service does not accrue membership points.  He served continuously on active duty from 16 Aug 05 until he was released from active duty on 15 Aug 09 and transferred to the USMCR Inactive Ready Reserve (IRR-non-participating member) to complete the remaining time left on his 8 year Military Service Obligation (MSO); as is normal for a vast majority of first term enlisted members.  DOD 7000.14-R, Financial Management Regulation, Volume 7A, Chapter 1, Paragraph 020203 A1 states, Commissioned Officers with over 4 years of prior active service as an enlisted member.  Service at least 4 years and 1 day satisfy to over 4 years of active requirement under this section.  His USMC active duty service was 4 years, 0 months and 0 days.  

The complete advisory opinion, with attachments, is at Exhibit D.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 7 Sep 21 for comment (Exhibit E), but has received no response.

FINDINGS AND CONCLUSION

1.  The application was timely filed.

2.  The applicant exhausted all available non-judicial relief before applying to the Board.

3.  After reviewing all Exhibits, the Board concludes the applicant is not the victim of an error or injustice.  The Board concurs with the rationale and recommendation of AFPC/DP2LT and finds a preponderance of the evidence does not substantiate the applicant’s contentions.  The Board notes the applicant provides a letter from the Department of the Navy, Inactive Reserve Section dated 9 May 19 and CRCR showing he accrued more than 1,460 points; however, there is no evidence he  completed qualifying ADT or IDT service while in the USMCR as required for prior service pay credit.  In this respect, while the provided CRCR reflects 1,521 points, his ADT and IDT time credit are reflected as “000000.”  Further, his DD Form 214 issued 15 Aug 09 states he was in DEP from 12 Feb 05 to 15 Aug 05 and the time was non-creditable.  The applicant’s time in the IRR after his discharge is also non-creditable; and he has provided no evidence he performed qualifying ADT or IDT during this time.  With respect to the applicant’s active duty service in the USMC, the applicant was not credited with more than 4 years of service and consequently is not eligible for prior service pay credit per DoD 7000.14-R.   Therefore, the Board recommends against correcting the applicant’s records.

4.  The applicant has not shown a personal appearance, with or without counsel, would materially add to the Board’s understanding of the issues involved.

RECOMMENDATION

The Board recommends informing the applicant the evidence did not demonstrate material error or injustice, and the Board will reconsider the application only upon receipt of relevant evidence not already presented.

CERTIFICATION

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2020-01099 in Executive Session on 12 and 29 Oct 21:

 , Panel Chair
 , Panel Member
 , Panel Member

All members voted against correcting the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 20 Jan 20.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:  Notification of failure to exhaust, dated 27 Oct 20.  
Exhibit D:	Advisory Opinion, AFPC/DP2LT, w/atchs, dated 18 May 21.
Exhibit E:	Notification of Advisory, SAF/MRBC to Applicant, dated 7 Sep 21.
Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings, as required by AFI 36-2603, paragraph 4.11.9.