ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 17 October 2019 DOCKET NUMBER: AR20190004913 APPLICANT REQUESTS: * correction of his record to show he was awarded 3 years, 1 month, and 25 days of constructive credit, effective April 1983 with back pay and allowances * correction of his record to show his Pay Entry Basic Date (PEBD) as 26 October 1993 * a personal hearing before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Excerpt, Public Law 96-513, dated 12 December 1980 * Excerpt, Department of the Army (DA) Circular 600-17 * Finance message (Constructive Credit for Medical and Dental Officers), dated 11 September 1981 * U.S. Army Reserve (USAR) Army Medical Department (AMEDD) recruiting office letter, dated 11 April 1983 * AMEDD Support Agency letter, dated 13 April 1983 * Defense Finance and Accounting Service (DFAS) letter, dated 25 September 2018 * Summary of retired pay, dated 25 September 2018 * Email correspondence with Major J- G- 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 (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 in a self-authored letter: * April 1981 - he submitted an application to the Medical Optometry Dental – Veterinary (MOD-V) program for early commissioning leading to a commission as a dental officer upon dental school graduation, and the recruiter advised him he would be commissioned as a second lieutenant (2LT)/O-1 * the recruiter told him he must be commissioned prior to the Defense Officers Personnel Management Act (DOPMA) becoming effective on 15 September 1981, which would guarantee he would receive pay credit for four years of dental school, making his PEBD 13 June 1978 * 8 August 1981 – he was commissioned as a second lieutenant (2LT)/O-1 in the USAR Medical Service Corps, pre DOPMA * 12 June 1982 – he graduated from the University of Tennessee dental school and was commissioned as a captain (CPT)/O-3 in the Dental Corps * 22 June 1982 – he entered active duty and was given 4 years of constructive credit for a PEBD of 13 June 1978 and he was paid as an O-3 over 4 years for pay purposes * March 1983 – he was notified of a possible overpayment due to inappropriate assignment of constructive credit for pay * 13 May 1983 – he applied for and received relief from indebtedness due to overpayment due to no fault of his own and his PEBD changed to 8 August 1981 (date of commissioning into MOD-V program USAR) * 15 June 1998 – he resigned his Regular Army commission * 31 October 2013 – he was commissioned as a lieutenant colonel (LTC)/O-5 in the USAR and his PEBD was determined to be 24 December 1996 * 3 August 2017 – he was promoted to the rank/grade of colonel (COL)/O-6 * 2 September 2018 – he was placed in the Retired Reserve due to a mandatory removal date * 25 September 2018 – he was notified by DFAS that his retired pay was based on 21 years, 8 months, and 8 days of service * the retirements branch office had difficulty adjusting his PEBD and only adjusted the date from 24 December 1996 to 22 December 1996 and his calculations suggest his PEBD should be 26 October 1993 3. A review of the applicant’s official records show the following on: * 8 August 1981 – the applicant was appointed as a Reserve commissioned officer and executed an oath of office * 10 February 1982 – by memorandum, the applicant was appointed as a Reserve commissioned officer, and subsequently executed an oath of office on 12 June 1982, he was credited with 4 years of service in an active status, and the memorandum specifies the service is not valid for a PEBD * 12 June 1982 – the Doctor of Dental Surgery was conferred upon the applicant * 16 June 1998 – the applicant was honorably discharged from active duty, DD Form 214 (Certificate of Release or Discharge from Active Duty) shows in: * item 12a (Date Entered Active Duty this Period) 21 June 1982 * item 12c (Net Active Service this Period) 15 years, 11 months, and 26 days * item 12e (Total Prior Inactive Service) 10 months and 13 days * 31 October 2013 – the applicant was appointed as a Reserve commissioned officer in the Dental Corps in the rank of LTC * 26 November 2013 – DA Form 5074-R (Record of Award of Entry Grade Credit (Medical and Dental Officers) was completed showing the following in: * Section A (Credit for Basic Qualifying Degree) * item 5 (Title of Degree) Doctor of Dental Surgery * item 6 (Date Granted) 12 June 1982 * item 7 (Inclusive Dates of Attendance) 24 August 1978 – 12 June 1982 * item 9 (Credit Awarded) 4 years * Section B (Credit for Internship) * item 11 (Inclusive Dates) 1 September 1982 – 30 August 1983 * item 12 (Credit Awarded) 1 year * Section C (Credit for Graduate Professional Education) * item 15 (Inclusive Dates) 1 July 1990 – 30 June 1994 * item 16 (Credit Awarded) 4 years * Section E (Credit for Professional Experience) * item 22 (Inclusive Dates) 31 June 1998 – 23 April 2013 * item 23 (Credit Awarded) 3 years * Part 2 (Prior Active Commissioned Service Credit) * item 29 (Inclusive Dates) 8 August 1981 – 16 June 1998 * item 30 (Credit Awarded) 11 years and 4 days * Part 3 (Computation of Entry Grade and Date of Rank) * item 34 (Total Constructive Credit) 12 years * item 35 (Total Prior Service Credit) 11 years and 4 days * item 36 (Total Entry Grade Credit) 23 years and 4 days * item 37 (Adjusted Total Entry Grade) 21 years * item 38 (Grade for Which Credit Applies) LTC * item 39 (Credit Required for Grade) 21 years * the applicant’s records contain a PEBD calculation showing the following periods of creditable service: * 8 August 1981 – 20 June 1982 (USAR officer) 10 months and 13 days * 21 June 1982 – 16 June 1998 (Regular Army officer) 15 years, 11 months, and 26 days * Total creditable service was 16 years, 10 months, and 9 days, making his PEBD 22 December 1996 * 25 September 2018 – Orders Number C09-897500, issued by the U.S. Army Human Resources Command, Fort Knox, KY, retired the applicant and placed him on the Retired list in the rank of COL 4. The applicant provides * an excerpt of Public Law 96-513 with an emphasis on subparagraph two which grandfathered the provision for constructive credit under Title 10 USC, sections 533 and 3353 and subparagraph b, which was the grandfather provision for the repealed provisions of Title 37 USC, section 205, 2 (7), and 1 (8) * excerpt of DA Circular 600-17 with emphasis on participants in a student status would be required to serve as Medical Service Corps officers until tendered appointments in the Dental Corps * Finance message showing and interim change to the DOPMA for constructive credit for dental officers was effective 15 September 1981 and it implemented the provisions of Public Law 96-513 with emphasis on the 4 year constructive credit for dental officers who completed training prior to 15 September 1981 * USAR AMEDD recruiting office letter wherein the author states recalling the push to access as many person prior to the implementation of the DOPMA and the applicants file shows the oath of office was taken on 8 August 1981 and he fully qualified for the credit * AMEDD Support Agency letter wherein the author states several dental officers who entered active duty on or after 15 September 1981, effective date of the DOPMA, may have been erroneously overpaid due to miscalculations of their constructive credit for pay, and the applicant had been identified as affected * DFAS letter wherein the applicant was informed of his net amount of retired pay and he was being paid as a COL with 21 years, 8 months, and 8 days of service * Email correspondence with MAJ J- G- wherein he informed the applicant he was eligible for constructive credit to adjust his PEBD after discussion with other HRC officials 5. Army Regulation (AR) 135-101 (Appointment as Reserve Commissioned Officers for Assignment to the Medical, Dental, Veterinary, and Medical Service Corps Branches of the Army Medical Service) in effect at the time states a graduate of dental school computation of years of service in an active status will be given 4 years constructive credit. Constructive service credit will be used only for computing Reserve grade in which the individual is to be appointed and for computing service for promotion eligibility. Such constructive credit will not apply toward computing service for active duty compensation, retirement eligibility, retirement compensation, other than as provided by law for Dental Corps officers. 6. Public Law 96-513 states (effective 12 December 1980) states, any officer who on the effective date of this Act is an officer of the Army in the Medical or Dental Corps is entitled to include in the years of service creditable to him for the computation of basic pay and retired pay the years of service creditable to him. 7. Department of Defense Financial Management Regulation (DODFMR) Volume 7A, provides the following example in section 010106. An individual completes dental school on 11 June 1977, and accepts a commission as a dental officer on 3 August 1977. Credit the member with 4 years of constructive service and set the basic pay date as 3 August 1973. 8. AR 15-185 (ABCMR) states an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. BOARD DISCUSSION: 1. After review of the application and all evidence, the Board determined there is sufficient evidence to grant partial relief. His records and evidence record support correction of his record to show he was awarded 3 years, 1 month, and 25 days of constructive credit, effective April 1983; correction of his record to show his PEBD 26 October 1993; and with commensurate corrective back pay and allowances. 2. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not required to serve the interest of equity and justice in this case. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. Showing he was awarded 3 years, 1 month, and 25 days of constructive credit, effective April 1983. b. Showing his PEBD 26 October 1993. c. Providing him with commensurate corrective back pay and allowances; 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to a personal appearance. 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, 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 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. AR 135-101 (Appointment as Reserve Commissioned Officers for Assignment to the Medical, Dental, Veterinary, and Medical Service Corps Branches of the Army Medical Service) in effect at the time states a graduate of dental school computation of years of service in an active status will be given 4 years constructive credit. Constructive service credit will be used only for computing Reserve grade in which the individual is to be appointed and for computing service for promotion eligibility. Such constructive credit will not apply toward computing service for active duty compensation, retirement eligibility, retirement compensation, other than as provided by law for Dental Corps officers. 3. Public Law 96-513 states (effective 12 December 1980) states, any officer who on the effective date of this Act is an officer of the Army in the Medical or Dental Corps is entitled to include in the years of service creditable to him for the computation of basic pay and retired pay the years of service creditable to him. 4. Department of Defense Financial Management Regulation (DODFMR) Volume 7A, provides the following example in section 010106. An individual completes dental school on 11 June 1977, and accepts a commission as a dental officer on 3 August 1977. Credit the member with 4 years of constructive service and set the basic pay date as 3 August 1973. 5. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190004913 5 1