IN THE CASE OF: . BOARD DATE: 3 January 2020 DOCKET NUMBER: AR20170007588 APPLICANT REQUESTS: in effect, correction of his Date Initially Entered Military Service (DIEMS) from 21 December 1980 to 20 February 1979. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DA Form 597 (Army Senior Reserve Officers' Training Corps (ROTC) Student Contract) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code, section 1552(b); however, the ABCMR conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states, he should be receiving retirement pay based on final pay retirement plan and not high 3 retirement plan. He enrolled in the ROTC program and signed a DA Form 597 on 20 February 1979. The cutoff date for the Final Pay system is 7 September 1980. Since he signed the contract 19 months before the cutoff date of 7 September 1980, he should be on the final pay retirement plan. 3. The applicant provides a DA Form 597, dated 20 February 1979, which states in the contract under part I, item d, that his enrollment in the ROTC does not commit the Army to his continuance in the program or his appointment as an officer. Such appointment will be dependent upon him meeting requirements for appointment as established by law or regulation. Item e states, in connection with his graduation and completion of the ROTC program, he will apply for appointment as a commissioned officer in the Army. 4. A review of the applicant’s service record shows: a. He completed and signed a DA Form 597 (Army Senior ROTC Contract) on 20 February 1979, while attending the University of Michigan. b. On 17 September 1979, he completed a DA Form 61 (Application for Appointment), annotating that he will graduate on 28 June 1980. c. On 16 December 1980, he received orders ordering him to active duty for service in Hawaii, with a report date of 16 June 1981. He was ordered for temporary duty to attend Engineer Officer Basic Course 4-5-C20, Class 81-2 from 28 January 1981 to 7 May 1981. The orders also reflects his accession date as a second lieutenant (2LT) on 21 December 1980. d. His DD Form 214 (Certificate of Release or Discharge from Active Duty) reflect that he entered active duty on 21 December 1980 and was honorably discharged on 29 August 1984, under the provision of Army Regulation 635-120 (Officer Resignations and Discharges) for miscellaneous reasons (unqualified resignation). e On 30 August 1984, he was appointed as a United States Army Reserve (USAR) commissioned officer and executed an oath of office as a first lieutenant (1LT). f. On 3 June 1997, he was appointed as a USAR commissioned officer and executed an oath of office as a captain (CPT). g. His Officer Record Brief reflects in Section III (Service Data): * Pay Entry Basic Date (PEBD): 21 December 1980 * Entry Active Duty (EAD) Current Tour: 21 December 1980 * Basic Date of Appointment: 21 December 1980 * Date of Rank (2LT): 21 December 1980 h. His DD Form 214 reflect that he entered active duty on 8 July 2002 and was honorably released from active duty (REFRAD) on 4 July 2003, under the provision of Army Regulation 600-8-24 (Officer Transfers and Discharges) for completion of required active service. i. His DD Form 214 reflect that he entered active duty on 23 May 2009 and was honorably REFRAD on 18 March 2010, for completion of required active service. j. His DD Form 214 reflect that he entered active duty on 26 November 2011 and was honorably REFRAD on 16 November 2012, for completion of required active service. k. His DD Form 214 reflect that he entered active duty on 5 August 2013 and was honorably REFRAD on 4 August 2015, for completion of required active service. l. On 2 October 2014, he received a Notification of Eligibility for Retired Pay at Non- Regular Retirement (20-Year Letter). m. On 30 November 2016, he received orders placing him on the retired list effective 4 April 2017, in the grade of colonel (COL/O-6). o. His DA Form 5016, reflects that his initial period of service began 21 December 1980 in the Regular Army. It also states that he has 21 years, 8 months and 9 days of qualifying time for retirement, and 4,744 total creditable points. 5. By law, a Reserve Soldier must complete a minimum of 20 qualifying years of service to be eligible for retired pay at age 60. A person is entitled, upon application, to retired pay if the person has attained the eligibility age applicable and has performed at least 20 years of service. At the time of his retirement, the law required the last 8 years of qualifying service to be in the Reserve. 6. By regulation Army Regulation 145-1, an ROTC graduate who is tendered an appointment becomes a commissioned officer after taking the oath of office and signing DA Form 71 (Oath of Office-Military Personnel). This constitutes acceptance of appointment. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was warranted. The Board found that pursuant to law and regulatory guidance, members who first entered uniformed or military service through an advanced Reserve Officers' Training Corps program, or a Reserve Federally recognized National Guard component will have a DIEMS that matches the date they entered those programs. The Board determined that the day the applicant entered the ROTC Program was 20 February 1979; therefore, his DIEMS should reflect the date of 20 February 1979. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adjusting his DIEMS date to 20 February 1979. If applicable, DFAS should provide the applicant payment of all back pay due as a result of this correction of records. 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. REFERENCES: 1. Title 10, United States 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 ABCMR to excuse an applicant's failure to timely file within the 3 year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation 135-180 (Army National Guard and Army Reserve-Retirement for Non-Regular Service) chapter 2-5 dated 28 May 2015 states that any period of service as a member of a regular component between the periods of Reserve service counted toward 8 or 6 year requirement will be included in the determination of the Soldier’s years of qualifying service in paragraph 2-2 toward eligibility for non-regular retired pay, but will not count toward the last 8 or 6 years. Any Reserve service served in conjunction with regular service will not count toward the last 8 or 6 years (that is, partial year credit). 3. Title 10, U. S. Code section 1405 (Years of Service) states for the purposes of the computation of the years of service of a member of the armed forces under a provision of this title providing for such computation to be made under this section, the years of service of the member are computed by adding— a. His years of active service. b. The years of service, not included in clause (1), with which he was entitled to be credited on May 31, 1958, in computing his basic pay; and c. The years of service, not included in clause (1) or (2), with which he would be entitled to be credited under section 12733 of this title if he were entitled to retired pay under section 12731 of this title. 4. Title 10, U.S. Code, sections 12731 through 12740 authorize retired pay for Reserve Component military service. Under this law, a Reserve Soldier must complete a minimum of 20 qualifying years of service to be eligible for retired pay at age 60. Section 12731 states a person is entitled, upon application, to retired pay computed under section 12739 of this title, if the person has attained the eligibility age applicable under the appropriate subsection and has performed at least 20 years of service computed under section 12732 of this title. 5. Military Personnel Message Number 03-102, dated 26 February 2003, subject: DIEMS Date Accuracy, announced a Human Resources Command initiative to conduct an Army accuracy scrub to validate DIEMS dates. DIEMS was defined as the date an individual was initially enlisted, inducted, or appointed in a Regular or Reserve Component of a Uniformed Service as a commissioned officer, warrant officer, or enlisted member. It further indicated that "breaks in service would not affect the date someone first became a member." It further indicated that the DIEMS of members of the Delayed Entry Program (DEP) would be the date the enlistment contract was signed regardless of when the Soldier entered active duty. Members who first entered uniformed or military service through the DEP, the United State Military Academy, an advanced Reserve Officers' Training Corps program, or a Reserve Federally recognized National Guard component will have a DIEMS that matches the date they entered those programs. There are no provisions for assigning a DIEMS date based on constructive service credit. 6. Title 10, U.S. Code, section 1411 (Rules of construction), defines construction of "First Became a Member" and shows that for purposes of this chapter and other provisions of law providing for computation of retired or retainer pay of members of the uniformed services, a person shall be considered to first become a member of a uniformed service on the date the person is first enlisted, inducted, or appointed in a uniform service. 7. Department of Defense Financial Management Regulation 7000.14-R, Volume 7B (Retired Pay), chapter 1 (Initial Entitlements - Retirements), governs retired pay. a. Paragraph 0101 (Service Creditable for Retirement Purposes), subparagraph 010101 (General), in pertinent part, states a member who continues on active duty after completion of 20 years of service may be retired for voluntary or involuntary reasons. b. Paragraph 0301 (Basic Computation), subparagraph 030101A (Retired Pay Base), shows the retired pay base is determined using the active duty basic pay entitlement of the member. (1) For individuals who first became members before 8 September 1980, the retired or retainer pay base is generally the basic pay of the member on the day before retirement. (2) For individuals who first became members after 7 September 1980, the retired or retainer pay base is generally the average of the highest 36 months of basic pay received. 8. Army Regulation 145–1 (ROTC - Senior ROTC Program: Organization, Administration, and Training), prescribes policies and general procedures for administering the Army’s Senior ROTC) Program. Except as an implementation of statue or otherwise prohibited, waivers and exceptions to the provisions of this regulation will be forwarded through command channels to Headquarters, Department of the Army (HQDA) proponent, HQDA (DAPE–MPO). The Commanding General, U.S. Army ROTC will provide detailed procedures for the day-to-day operation of the ROTC Program. 9. Army Regulation 635–8 (Personnel Separations - Separation Processing and Documents), prescribes the transition processing function of the military personnel system. It provides principles of support, standards of service, policies, tasks, rules, and steps governing required actions in the field to support processing personnel for separation and preparation of separation documents. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170007588 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1