IN THE CASE OF: BOARD DATE: 9 June 2016 DOCKET NUMBER: AR20150009549 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ___x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 9 June 2016 DOCKET NUMBER: AR20150009549 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. IN THE CASE OF: BOARD DATE: 9 June 2016 DOCKET NUMBER: AR20150009549 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, a review of his service records to determine if he qualifies for entitlement to a special rate of basic pay for the rank/pay grade of second lieutenant (2LT)/O-1 through captain (CPT)/O-3 from 23 June 1995 through 14 May 2005. 2. The applicant states in accordance with the Department of Defense Financial Management Regulation (DoDFMR), Volume 7A, chapter 1, dated June 2012, creditable service for O-1E/O-2E/O-3E status includes prior enlisted service and inactive duty for training. DoDFMR, chapter 1, also states that commissioned officers in pay grades O-1 through O-3 with more than 1,460 points computed under Title 10, U.S. Code (USC), section 12732(a)(2), for service as a warrant officer and/or an enlisted member are entitled to the special rate of pay of O-1E/O-2E/O-3E. He had 1,470 computed points. He wants a clarification on this regulation as it pertains to his entitlement to the special rate of basic pay. 3. The applicant provides copies of: * DD Form 4/1 (Enlistment/Reenlistment Document – Armed Forces of the United States) * DA Form 3286-59/1 (Statement for Enlistment) and allied documents * Orders Number 75-23 and 026-43 * DA Form 5691-R-E (Request for Reserve Component Assignment Orders) * Notification of Direct In-Service Enlistment memorandum * DA Form 597-3 (Army Senior Reserve Officers’ Training Corps (ROTC) Scholarship Cadet Contract) * Reserve Officer's Training Corps (ROTC) Green to Gold Scholarship memorandum * Appendix B (Army Career Counselor Attrition Management Control Number Checklist) * National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) * DD Form 2586 (Verification of Military Experience and Training) * four emails between himself and the Director, Defense Military Pay Office * two Chronological Statements of Retirement Points * DoDFMR, Volume 7A, chapter 1, dated June 2012 and May 2015 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. 2. The applicant enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on 10 February 1987. He was discharged from the DEP on 22 July 1987. He enlisted in the Regular Army (RA) on 23 July 1987, for 4 years. He completed training and was awarded military occupational specialty (MOS) 11B (infantryman). 3. He provides: * Orders Number 75-23, dated 18 April 1991, releasing him from active duty and transferring him to the USAR effective 22 July 1991 * DA Form 5691-R-E, dated 23 May 1991, in which he voluntarily accepted an assignment in a Maryland Army National Guard (MDARNG) unit * Notification of Direct In-Service Enlistment memorandum, dated 12 July 1991, which notified the MDARNG of his enlistment effective 23 July 1991 4. He was released from active duty on 22 July 1991 and was transferred to the USAR. He was credited with completing 4 years of net active service. 5. He enlisted in the MDARNG on 23 July 1991. 6. He enlisted in USAR Control Group (ROTC), as a cadet, on 10 September 1991. His DA Form 597 (Army Senior ROTC Scholarship Cadet Contract) does not show he enrolled in the Simultaneous Membership Program (SMP) at the time. 7. He also provides copies of: * DA Form 597-3, he executed and signed on 10 September 1991, for enlistment in the USAR Control Group (ROTC), as a cadet, for 8 years * ROTC Green to Gold Scholarship memorandum, dated 20 January 1992, which advised the MDARNG that he was a Green to Gold scholarship recipient in the Loyola College Army ROTC program * Appendix B showing his request for discharge/separation from the MDARNG by reason of a ROTC scholarship was approved in January 1992 * Orders Number 026-43, dated 7 February 1992, discharging him from the MDARNG and transferring him to the USAR Control Group ROTC effective 7 March 1992 8. He was released from the MDARNG in pay grade E-5 on 7 March 1992 and was transferred to the USAR Control Group (ROTC). He was credited with completing 7 months and 15 days of Reserve service. 9. He further provides a DD Form 2586, dated 1 January 1993, showing he had military experience in the RA and ARNG from July 1987 through March 1992 in MOS 11B. 10. He was discharged from the USAR ROTC on 20 May 1994 and accepted an appointment in the USAR, as a 2LT, on 21 May 1994. He was ordered to active duty with a reporting date of 10 August 1995. 11. Orders Number 349-2, issued by Headquarters, First Region (ROTC), U.S. Army Cadet Command on 15 December 1995, delayed his active duty entry date by reason of an educational delay. He was assigned to the USAR Control Group. 12. He entered on active duty on 15 May 1999. 13. He also provides: a. Two Chronological Statement of Retirement Points, dated 14 November 2014 and 24 March 2015, showing he: * served in the RA from 22 July 1987 through 22 July 1991 and was credited with 4 qualifying years for retirement * served in the ARNG from 23 July 1991 through 6 March 1992 and was credited with zero qualifying years for retirement (he received only 9 ARNG membership points and no inactive duty points or active duty for training points) * served in the ROTC from 7 March 1992 through 20 May 1994 and was credited with zero qualifying years for retirement (he received only 15 members points for each year) b. Four emails on/for: (1) 23 March 2015 – the Director, Defense Military Pay Office, advised him that he had reviewed all the documents submitted on his behalf as it related to creditable service as an enlisted member. DoDFMR, Volume 7A, paragraph 010103.A.4., the rule that was in effective at his enlistment, stated that he must have over 4 years of combined prior active service as an enlisted member to be entitled to the basic pay special rate. Subsequent rules were only applicable if he was in that status beginning on the effective date, not reached during that period, or as of the new date. He found no support to adjust the applicant's service date. (2) 24 March 2015 – in which he inquired to the Director, Defense Military Pay Office, pertaining to meeting the requirements of DoDFMR, Volume 7A, paragraph 010203.A.5, if his retirement points from enlisted service totaled more than 1,460 points, would he be eligible for the basic pay special rate? (3) 27 March 2015 – the Director, Defense Military Pay Office, requested the Defense Finance and Accounting Service review and determine the applicant’s status. He stated the documentation indicated the applicant was discharged from the ARNG and assigned to the ROTC Control Group on 7 March 1992. ROTC was not creditable service unless in the SMP/concurrent drilling status. He requested verification of the applicant's basic entry pay date. (4) 2 April 2015 – the Director, Defense Military Pay Office, recommended he apply to the ABCMR. 14. The staff of the Board obtained an advisory opinion from the Branch Chief, Human Resources Service Center, U.S. Army Human Resources Command (HRC), dated 14 February 2016, who stated: a. based on a review of the application and his military service records and in accordance with DoDFMR, Volume 7A, chapter 1, the applicant did not meet the requirement for the basic pay special rate. The applicant's prior active service was 4 years, 0 months, and 0 days. Documents contained in his electronic military service record indicated he was enrolled in the ROTC and was transferred to the USAR Control Group. Cadets who complete ROTC would not be credited with Reserve component service when computing length of service or entitlements to basic pay. b. unfortunately, no documents were found indicating the applicant was enrolled in the SMP. If he was enrolled in SMP, he could have met the requirements for the O-1E/O-2E/O-3E special rate of basic pay. 15. The advisory opinion was provided to the applicant on 2 March 2016 for acknowledgement/rebuttal. In his rebuttal, dated 24 March 2016, the applicant stated: a. it appears HRC does not have visibility concerning his ARNG service from 23 July 1991 through 7 March 1992. Although he was awarded a Green to Gold ROTC scholarship in the fall of 1991, his enlistment entry in the ARNG pre-dated the ROTC scholarship. His enlistment in the ARNG did not end until March 1992. The HRC memorandum indicated he was enrolled in ROTC and was transferred to the USAR Control Group (ROTC) without reference to his ARNG service. He was not transferred to the Control Group until March 1992 (as indicated on the NGB Form 22) and he remained a member of the ARNG until that time. b. DoDFMR, Volume 7A, chapter 1, states ?commissioned officers with over 4 years of prior active service as an enlisted member…Service on active duty, or active and inactive duty for training for at least 4 years and 1 day satisfy the over 4 years of service requirement under this section.? His NGB Form 22 indicated his net ARNG service as 7 months and 15 days. He participated in drills over that period of service. It is noted he was still a member of the ARNG when the memorandum, dated 20 January 1992, was issued. REFERENCES: 1. DoDFMR, Volume 7A, chapter 1, pertained to active enlisted and/or warrant officer service for members in basic pay grades O-1E, O-2E, or O-3E. The regulation stated in: a. Paragraph 010103.A.1. – 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 included all active service, in either the Regular or Reserve Component or both (i.e., active duty for training in enlisted or warrant officer status, annual Reserve training duty, and full-time NG duty). Service on active duty or active duty or inactive duty for training for at least 4 years and 1 day satisfied the over 4 years of service requirement under the section. Subparagraph B, effective 20 May 1958, stated commissioned officers in pay grades O-1, O-2, or O-3 who are credited with over 4 years (i.e., at least 4 years and 1 day) of prior active service as an enlisted member are entitled to the special rate of basic pay for pay grades O-1E, O-2E, or O-3E.  b. Paragraph 010103.A.2. – commissioned officers in pay grades O-1, O-2, and O-3 who are credited with over 4 years (i.e., at least 4 years and 1 day) of prior active service as an enlisted member are entitled to the special rate of basic pay for pay grades O-1E, O-2E, or O-3E. c. Paragraph 010103.A.4. – effective 1 October 1993, commissioned officers in pay grades O-1, O-2, and O-3 who are credited with over 4 years (i.e., at least 4 years and 1 day) of combined prior active service as an enlisted member and warrant officer are entitled to the special rate of basic pay for pay grades O-1E, O-2E, or O-3E. 2. Army Regulation 145-1 (Senior Reserve Officers’ Training Corps Program: Organization, Administration, and Training) prescribes policies and general procedure for administering the Army’s Senior ROTC Program. This regulation provides in pertinent part that cadets who complete the ROTC course of instruction and are members of the ARNG or USAR and who are later appointed as officers through the ROTC will not be: a. credited with Reserve component service when computing length of service for any purpose for the period while enrolled in the advanced ROTC course under the provisions of Title 10, U.S. Code, section 2106(c); b. credited with reserve component service in computing entitlements to basic pay for the period while enrolled in either the basic or advanced ROTC course under the provisions of Title 37, U.S. Code, section 205(d); and c. cadets who have 2-year, 3-year, and 4-year scholarships may not be enrolled in the SMP except for those scholarship cadets awarded a Guaranteed Reserve Forces Duty or Reserve Forces Duty scholarship. All other USAR scholarship recipients must be transferred to USAR Control Group. DISCUSSION: 1. The applicant served in the RA as an enlisted member from 23 July 1987 through 22 July 1991. He was credited with completing exactly 4 years of net active service. 2. The date after his release from the RA, he enlisted in the MDARNG on 23 July 1991. He then enlisted in the USAR ROTC as a cadet on 10 September 1991. Evidence shows he was an ROTC scholarship recipient. Orders were published releasing him from the MDARNG on 6 March 1992 nearly 6 months after his USAR ROTC enlistment. He was discharged from ROTC on 20 May 1994 and appointed in the USAR as a commissioned officer on 21 May 1994. 3. While the evidence confirms he had 4 years of active service as an enlisted member prior to his enlistment in the USAR Control Group (ROTC), there is no evidence and he provided none showing he was enrolled in the SMP at the time of his ROTC enlistment. Though he stated he performed drill with his MDARNG unit, there is no evidence he was paid for attendance nor did he provide evidence he attended drill in a non-pay status (i.e., for points only). Further as he was an ROTC scholarship recipient he was not eligible for the SMP program. 4. In accordance with the DoDFMR Volume 7A, chapter 1, in effect at the time, he must have been enrolled in SMP at the time of his USAR Control Group (ROTC) enlistment to meet the eligibility requirements for the O-1E/O-2E/O-3E basic pay special rate. More importantly, Army Regulation 145-1 clearly says statutes do not allow ROTC scholarship recipients who become commissioned officers the ability to be credited with Reserve component service when computing entitlements to basic pay. The applicant’s evidence and argument do not support his contention that his finance record should be adjusted to show a basic pay special rate for his service in the USAR Control Group (ROTC) or MDARNG. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150009549 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150009549 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2