BOARD DATE: 31 August 2020 DOCKET NUMBER: AR20190015559 APPLICANT REQUESTS:, in effect, correction of his record to show he had creditable military service for the period of time he attended the United States Military Academy (USMA) at West Point, New York. He also requests his Army Commendation Medal (ARCOM) be added to his revised DD Form 214 (Certificate of Release or Discharge from Active Duty). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Item 35 (Record of Assignments) of DA Form 2-1 (Personnel Qualification Record) (one-page only) * DD Form 214, for the period ending 2 June 1981, member copy #1 and service copy #7 * DD Form 215 (Correction to DD Form 24), dated 1 March 2007 * Standard Form 144 (Statement of Prior Federal Service), dated 8 November 2007 * Education Technician, Office of the Dean, USMA letter, dated 24 January 2014 * Department of Veterans Affairs (VA) Rating Decision letter, dated 30 August 2019 (one-page only) * VA Form 21-4138 (VA - Statement in Support of Claim), dated 18 September 2019 FACTS: 1. The applicant did not file within the three-year period provided in Title 10, United States Code, in 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: * he entered active duty on 3 July 1972 as a cadet at the USMA at West Point, NY * he was commissioned as a second lieutenant on 2 June 1976 when he graduated from USMA * he continuously served on active duty form 3 July 1972 to 1 June 1981 * he entered active duty (USMA) in 1972 while the Vietnam Conflict was still being fought * the Department of Veterans Affairs (VA) does not consider him to be a Vietnam Era veteran because his DD Form 214 is incorrect as it states he entered active duty on 2 June 1986, after the Vietnam Era service time * this is contrary to public law * therefore, item 12a (Date Entered AD (Active Duty) This Period) should show "3 July 1972" instead of "2 June 1976" 3. The applicant is requesting correction of his DD Form 214 to show his Army Commendation Medal. The applicant provides a DD Form 215 (Correction to DD Form 214) dated 1 March 2007, correcting his DD Form 214 to show the ARCOM. Applicable governing regulatory guidance states to prepare a DD Form 215 to correct an entry on a DD Form 214. Since the correction has already been completed, this portion of his request will not be discussed further in this record of proceedings. 4. The applicant's complete military records are not available for review. A complete and thorough search for his military records was conducted; however, his records could not be located. This case is being considered based on the documents provided by the applicant. 5. The applicant provides: a. One-page from his DA Form 2-1 (Personnel Qualification Record) that contains item 35 (Record of Assignments) that shows the following entries: * "CADET - USMA, 720703-760601" * "COM (commissioned) FA (Field Artillery) - RA (USMA) effective 760602" b. A DD Form 214 that shows he entered active duty service this period as a commissioned officer in the Field Artillery branch on 2 June 1976 from USMA. He was honorably discharged by reason of unqualified resignation and transferred to the United States Army Reserve (USAR) Control Group (Reinforcement) on 2 June 1981 in the rank/grade of captain (CPT)/O-3. It further shows he completed 5 years of net active service this period. c. A Standard Form 144, dated 8 November 2007 that shows he listed his prior federal service as: * "USMA West Point, NY from 3 July 1972 to 2 June 1976, Graduate" * "U.S. Active Army from 2 June 1976 to 1 June 1981, Honorable" * "U.S. Army Reserve from 2 June 1981 to 21 June 1989, Honorable" d. A letter from the Education Technician, Office of the Dean, USMA, dated 24 January 2014 certifying the applicant was a cadet at the USMA from 3 July 1972 and graduated on 2 June 1976 and graduated in good standing. It also had a note that said "Cadets are considered "active duty" while they are attending the USMA but they are non-deployable." e. A VA Rating Decision letter (one-page only), dated 30 August 2019 that informs him that he is considered a Veteran of the Peacetime and served in the Army from 2 June 1976 to 2 June 1981. Subsequently, he submitted a VA Form 21-4138, dated 18 September 2019 stating his rationale to be considered a "Vietnam Era" veteran. 6. There applicant provided no evidence that shows he held concurrent enlisted or Reserve status during the period of his attendance at the USMA from 3 July 1972 through 2 June 1976. 7. Title 10, United States Code, section 971, subsection (b) states that in computing length of service for any purpose, service as a cadet or midshipman may not be credited to a commissioned officer of the Army, Air Force, Navy, or Marine Corps. 8. 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 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. BOARD DISCUSSION: After review of the complete evidentiary record, including the applicant’s statement, the Board found insufficient evidence to grant relief. The Board carefully considered the applicant’s request to acknowledge and record four years of active service while the applicant was a cadet at USMA. The Board found that Item 12c (Record of Service, Net Active Service This Period) of the applicant’s DD Form 214, dated 2 June 1981, accurately reflects that the applicant served for 5 years on active duty. Per stature and regulation, unless the cadet is concurrently service in the Reserves or is concurrently enlisted, the cadet’s service at the service academy is not creditable toward Active Service. The record is void of and the applicant did not provide evidence of concurrent service. Therefore, the Board found no error to correct. ? 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. 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 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. 2. Army Regulation 635-5 (Personnel Separations - Separation Document), dated 15 August 1979 and in effect at the time of his separation, prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. It also establishes standardized policy for the preparation of the DD Form 214. a. Paragraph 1-4 states, in pertinent part, that a DD Form 214 will be prepared for all personnel at the time of their retirement, discharge, or release from the Active Army. Personnel includes a cadet of the USMA who fails to graduate. If a cadet entered the academy from an active duty status, a DD Form 214 will be issued at the end of that term of service. b. Instructions for the preparation for the DD Form 214 show in: (1) Item 12a (Date Entered AD This Period) to enter the date of the first day of the last immediate reenlistment for which a DD Form 214 was not issued under the provision of paragraph 1-4 b(5) [DD Form 214 will not be prepared for….]. (2) Item 12c (Net Active Service This Period) to enter all service entered will be less time lost under Title 10, U.S. Code, section 972 and time lost after expiration of term of service. For cadets, enter the total time between dates entered in items 12a and item 12b (Separation Date This Period) with reference to item 18 (Remarks) paragraph h below. (3) Item 18 - paragraph h, states that when a separatee is a cadet to enter "Item 12 includes service as a cadet, USMA, from (date of entrance in USMA) to (date to separation)." 3. Title 10, United States Code, section 7075 (Regular Army: composition) states the Regular Army is the component of the Army that consists of persons whose continuous service on active duty in both peace and war is contemplated by law, and of retired members of the Regular Army. The Regular Army includes the officers and enlisted member of the Regular Army; the professors, director of admissions, and cadets of the USMA; and the retired officers and enlisted members of the Regular Army. 4. Title 10, United States Code, section 101 (Definitions) states the definitions relating to duty status apply in this title: a. The term "active duty" means full-time duty in the active military service of the United States. Such term includes full-time training duty, annual training duty, and attendance, while in the active military service, at a school designated as a service school by law or by the Secretary of the military department concerned. b. The term "active service" means service on active duty or full-time National Guard duty. 5. Title 38, United States Code, section 101 (Definitions) states: a. The term "veteran" means a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable. b. The term "active duty" means, in pertinent parts,: (1) full-time duty in the Armed Forces, other than active duty for training; and (2) service as a cadet at the United States Military, Air Force, or Coast Guard Academy, or as a midshipman at the United States Naval Academy. c. The term "Vietnam era" means the following: (1) The period beginning on February 28, 1961, and ending on May 7, 1975, in the case of a veteran who served in the Republic of Vietnam during that period. (2) The period beginning on August 5, 1964, and ending on May 7, 1975, in all other cases. 6. Title 10, United States Code, section 971 (Service credit: officers 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 Naval Reserve) states that the period of service under an enlistment or period of obligated service while also performing service as a cadet may not be counted in computing, for any purpose, the length of service of an officer of an armed force. 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 c. 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190015559 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1