ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 1 August 2019 DOCKET NUMBER: AR20180016775 APPLICANT REQUESTS: Retirement points credited for his active duty service as a Cadet at the United States Military Academy (USMA). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * self-written letter to the Board * Orders number 73-624, dated 12 April 1980 * USMA Transcript of Academic Record * FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records 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, in effect: * his entire time as a Cadet from 6 July 1978 to 26 May 1982 should be credited towards his total retirement points because he was on active duty status the entire time * he carried a green Identification card and was subject to all the rules and regulations of any active duty Soldier * his counterparts in Reserve Officers’ Training Corps were afforded the opportunity to join reserve units to add time in service and receive retirement points * this discriminates against the service members at the service academies * he was subject to the orders of those appointed above him and subject to the Uniformed Code of Military Justice at all times * his duty during this period was to train and become qualified to become a Regular Army (RA) Second Lieutenant (2LT) * as a Cadet, he spent time in temporary duty at Fort Benning, Fort Carson, and Fort Knox 3. The applicant provides: * self-written letter to the Board, dated 2 October 2018, requesting consideration * Orders number 73-624, issued by Headquarters, USMA, West Point, NY, dated 12 April 1980 for travel to Fort Carson, CO, and Fort Benning, GA, for summer training, he was a Cadet at the time of orders * USMA Transcript of Academic Record, which show he entered USMA on 6 July 1978 and graduated 26 May 1982 with a Bachelor of Science Degree 4. A review of the applicant’s military records shows the following on: * 26 May 1982 – commissioned as a 2LT in the RA * 11 August 1989 – honorably released from active duty and transferred to the US Army Reserve (USAR) Control Group Reinforcement * 15 August 1989 – commissioned as a Captain in the USAR * 11 September 2008 – received Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter) * 1 June 2010 – released from the USA Rand transferred to the Retired Reserve 5. DA Form 5016 (Chronological Statement of Retirement Points), dated 23 July 2019, shows he was credited with a total of 3,930 retirement points and 22 years and 8 days of service qualified for retirement. His creditable service began upon his commission in the RA on 26 May 1982. 6. There is no evidence in the applicant’s records that shows he held a concurrent enlisted or Reserve status during the period of his attendance at the USMA from 6 July 1978 through 25 May 1982. 7. Department of Defense (DOD) 7000.14, Financial Management Regulation (FMR), Volume 7A (Military Pay Policy and Procedures - Active Duty and Reserve Pay), Chapter 1 (Basic Pay), paragraph 010201 (Service which is Creditable) details the computation of the pay entry base date and shows that: a. Subparagraph D (Other Creditable Service with restrictions noted below and in subparagraph 010102.A) states "Service as a cadet or midshipman at a military academy is always creditable service for an enlisted member who is not commissioned and reverts back to his/her enlisted status to complete their enlistment contract. See Table 1-1 to determine whether such service is creditable for commissioned and warrant officers." b. Table 1-1 shows when a member currently serving as an officer has had service as a cadet or midshipman in any of the military academies to which appointed and member held no concurrent enlisted and/or Reserve status, then the period involved is not creditable. 8. Title 10, United States Code (USC), section 971 (Service credit: officer may not count service performed while serving as cadet or midshipman), provides the following: a. Subsection (a) (Prohibition on Counting Enlisted Service Performed while at Service Academy or in Reserve) 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 or an officer in the Commissioned Corps of the Public Health Service. b. Subsection (b) (Prohibition on Counting Service as a Cadet or Midshipman) states that in computing length of service for any purpose, service as a cadet or midshipman may not be credited to any of the following officers: (1) An officer of the Navy or Marine Corps (2) A commissioned officer of the Army or Air Force (3) An officer of the Coast Guard (4) An officer in the Commissioned Corps of the Public Health Service b. Subsection (c) (Service as a Cadet or Midshipman Defined) states the term “service as a cadet or midshipman” means: (1) service as a cadet at the United States Military Academy, United States Air Force Academy, or United States Coast Guard Academy; or (2) service as a midshipman at the United States Naval Academy. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered the applicant’s statement, his service as a cadet, his record of service and the applicable Financial Management policy and law. The Board determined that, based on a preponderance of evidence, the applicant was not eligible for his time at the United States Military Academy to be credited for length of service. The Board found no evidence of error or injustice. 2. After reviewing the application and all supporting documents, the Board found the relief was not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : 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 the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Department of Defense (DOD) 7000.14, Financial Management Regulation (FMR), Volume 7A (Military Pay Policy and Procedures - Active Duty and Reserve Pay), Chapter 1 (Basic Pay), paragraph 010201 (Service which is Creditable) details the computation of the pay entry base date and shows that: a. Subparagraph D (Other Creditable Service with restrictions noted below and in subparagraph 010102.A) states "Service as a cadet or midshipman at a military academy is always creditable service for an enlisted member who is not commissioned and reverts back to his/her enlisted status to complete their enlistment contract. See Table 1-1 to determine whether such service is creditable for commissioned and warrant officers." b. Table 1-1 shows when a member currently serving as an officer has had service as a cadet or midshipman in any of the military academies to which appointed and member held no concurrent enlisted and/or Reserve status, then the period involved is not creditable. 3. Title 10, United States Code (USC), section 971 (Service credit: officer may not count service performed while serving as cadet or midshipman), provides the following: a. Subsection (a) (Prohibition on Counting Enlisted Service Performed while at Service Academy or in Reserve) 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 or an officer in the Commissioned Corps of the Public Health Service. b. Subsection (b) (Prohibition on Counting Service as a Cadet or Midshipman) states that in computing length of service for any purpose, service as a cadet or midshipman may not be credited to any of the following officers: (1) An officer of the Navy or Marine Corps (2) A commissioned officer of the Army or Air Force (3) An officer of the Coast Guard (4) An officer in the Commissioned Corps of the Public Health Service b. Subsection (c) (Service as a Cadet or Midshipman Defined) states the term “service as a cadet or midshipman” means: (1) service as a cadet at the United States Military Academy, United States Air Force Academy, or United States Coast Guard Academy; or (2) service as a midshipman at the United States Naval Academy. ABCMR Record of Proceedings (cont) AR20180016775 5 1