IN THE CASE OF: 
BOARD DATE: 7 April 2023
DOCKET NUMBER: AR20220010772 


APPLICANT REQUESTS:  reconsideration of his previous request for the correction of his service record to reflect his Pay Entry Basic Date (PEBD) as 1989 vice 1993. 

APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: Memorandum requesting reconsideration of his previous request for the correction of his PEBD. 

FACTS: 

1.Incorporated herein by reference are military records which were summarized in theprevious consideration of the applicant's case by the Army Board for Correction ofMilitary Records (ABCMR) in Docket Number AR20190000315 on 12 April 2021. Basedon the preponderance of documentation available for review, the Board determined thatthe applicant's record should be corrected to reflect his PEBD of 1989 and not 1993.However, on 21 July 2022, the Deputy Assistant Secretary of the Army (Review Boards)found there was insufficient evidence to grant relief. He found the Board's determinationexceeded their authority. In accordance with Title 10 United States Code (USC), section2126 and the Department of Defense Instruction (DoDI) 6000.13 (Accession andRetention Policies, Programs, and Incentives for Military Health Professions Officers(HPOs), the applicant's time in the Health Professions Scholarship Program (HPSP)shall not be counted in computing years of service and creditable pay under Title 37USC, section 205 (Service creditable for computation of basic pay). The HPSP serviceagreement which the applicant signed also contained this language. The reliefpurportedly granted by the Board was contrary to controlling law and regulation.Therefore, under the authority of Title 10 USC, section 1552, it was directed no changewas to be made to the applicant's service record.

2.The applicant states in effect, he requests the Board reconsider his previous requestfor the correction of his service record to reflect his PEBD as 1989 vice 1993 based onthe weight of the evidence surrounding his contractual obligation to the military as aterm of his Voluntary Separation Incentive Program (VSIP). He served in the RegularArmy (RA) from 1989 to 1999 and he was separated through the VSIP/SpecialSeparation Benefits (SSB) program. He signed a Certificate of Acknowledgement andUnderstanding of Service Requirements for Individual Applying for Appointment in theU. S. Army Reserve (USAR). The document acknowledged the utilization of VSIP required service in the Individual Ready Reserve (IRR). Upon separation from active duty on 20 August 1999, he was assigned to the IRR without a break in service. 

He was accepted into the HPSP on 21 August 1999 until 2003. He then re-entered active duty in 2003, at which time his PEBD was erroneously changed from 5 May 1989 to 9 February 1993. For longevity, the HPSP time was irrelevant as he did not have a break in service. In 2017, he learned his PEBD should not have been changed and he was advised by the U. S. Army Human Resources Command (HRC) to apply to the ABCMR, which he did. In 2022, the ABCMR granted him full relief and HRC corrected his service record; however, the Defense Finance and Accounting Service (DFAS) failed to implement the correction.  

In September 2022, he found out from DFAS that the Deputy Assistant Secretary of the Army overruled the ABCMR decision to grant him relief. Then the Deputy, Compensation and Entitlements Division, Office of the Deputy chief of Staff, G1 and the Chief, Army Medical Department (AMEDD) Human Resources Actions and Policy, Health Service Division both agreed with the advisory opinion which stated his PEBD of 1993 was accurate based on HPSP regulation. Neither commented on his VSIP. 

He was also denied due process in accordance with Title 10 USC, section 1556, that requires the ABCMR to provide copies of all correspondence and communications to or from the Board pertaining to or having a material effect on his case. Which the applicant was not provided at the time of the communications. All the communications and advisory opinions erroneously analyze his HPSP service in relation to his PEBD. He did not base his request for the correction of his PEBD to 1989 based on his HPSP service, but rather the fact he did not have a break in service as compelled by the VSIP. By policy he should have been afforded the opportunity to submit a rebuttal to his argument prior to the reversal of the Board decision. 

3.A review of the applicant's service record shows:

a.The applicant's service record was void of his DA Form 71 (Oath of Office MilitaryPersonnel). On 31 July 1989, Orders Number 143-6-A-622, issued by Headquarters (HQs), U. S. Army Third Region, U. S. Army Reserve Officers' Training Corps Cadet Command, the applicant was ordered to active duty effective 10 September 1989. 

b.On 13 April 1999, Orders Number 103-0106, issued by HQs, U. S. Army MedicalDepartment Center and School and Fort Sam Houston, the applicant was discharged from active duty effective 20 August 1999. The additional instructions stated the applicant was approved for SSB payment.  

c.The applicant was honorably discharged from active duty on 20 August 1999. DDForm 214 (Certificate of Release or Discharge from Active Duty) shows the applicant completed 9-years, 11-months, and 11-days of active service. It also shows in item 18 (Remarks) the applicant was paid SSB in the amount of $65,577.33. 

d.On 21 August 1999, the applicant completed his oath of office and was appointeda Reserve commissioned officer. 

e.On 21 August 1999, the applicant signed a USAREC Form 1131-R-E(Department of the Army Service Agreement for the E. Edward Herbert Armed Forces Health Professions Scholarship Program (AFHPSP). It states the applicant must accept an appropriate reappointment or designation as to grade and branch within the Army, based upon his health profession, following satisfactory completion of the program. The applicant understood and agreed that service performed while a member of the HPSP program would not be counted: in determining eligibility for retirement other than by reason of a physical disability incurred while on active duty as a member of the program or in computing years of service creditable under Title 37 USC, section 205. 

f.The applicant's Officer Record Brief (ORB) dated 4 September 1999, shows his:

•Basic Active Service Date (BASD): 10 September 1989

•Basic Date of Appointment: 5 May 1989



g.On 28 September 1999, Orders Number C-09-300326, issued by the U. S. TotalArmy Personnel Command (PERSCOM), the applicant was assigned to the USAR Control Group (Officer Active Duty Obligor (OADO), effective 21 August 1999 for acceptance of appointment in the USAR. 

h.On 31 July 2000, PERSCOM notified the applicant of his promotion to the rank ofmajor (MAJ)/O-4, effective 30 September 2000. 

i.On 26 February 2003, the applicant signed DA Form 5074-R (Record of Award ofEntry Grade Credit (Medical and Dental Officers)) which shows he obtained his medical degree from the University of Texas Health Science Center during the period of  
21 August 1999 through 10 May 2003 and he served in the Regular Army (RA) during the period of 10 September 1989 through 20 June 1999. He was awarded: 

•6-years total constructive credit

•4-years, 11-months, and 20-days prior service credit

•10-years, 11-months, and 20-days entry grade credit



j.On 19 March 2003, Orders Number A-03-390982, issued by PERSCOM, theapplicant was ordered to active duty, effective 3 June 2003, for active duty commitment to fulfill an active Army requirement. 

k.On 24 May 2003, the applicant completed his oath of office and was appointed aReserve commissioned officer in the rank of MAJ/O-4. 

l.On 8 December 2021, the Army Board for Correction of Military Records(ABCMR) notified HRC that under the authority of Title 10 USC, section 1552, the Board recommended, approved, and directed that all Army records of the applicant be corrected to reflect his PEBD as 1989 and not 1993. 

m.On 19 April 2022, Orders Number 109-0007, issued by HQs, U. S. ArmyGarrison, Fort Carson, the applicant was retired and placed on the retired list effective 
1 March 2023. 

n.On 25 July 2022, the ABCMR notified the applicant which advised him that afterthe Board recommended to grant him full relief, the Deputy Assistance Secretary of the Army (Review Boards) determined the full relief was not warranted. He found there was insufficient evidence to grant relief. He found the Board's determination exceeded their authority. In accordance with Title 10 USC, section 2126 and DoDI 6000.13, the applicant's time in the HPSP shall not be counted in computing years of service and creditable pay under Title 37 USC, section 205 (Service creditable for computation of basic pay). The HPSP service agreement which the applicant signed also contained this language. The relief purportedly granted by the Board was contrary to controlling law and regulation. Therefore, under the authority of Title 10 USC, section 1552, it was directed no change was to be made to the applicant's service record. 

o.The applicant's ORB dated 18 November 2022 shows his:

•BASD: 19 June 1993

•Basic Officer Service Date (BOSD): 22 June 1993

•Date Initially Entered Military Service (DIEMS): 5 May 1989



p.On 13 February 2023, Orders Number 4012650, issued by the Department of theArmy, the applicant was assigned to the USAR Control Group (Retired Reserve) effective 1 March 2023 for voluntary retirement. 

q.The applicant was honorably retired from active duty on 28 February 2023 andassigned to the USAR Control Group (Retired Reserve). DD Form 214 shows the applicant completed 19-years, 8-months, and 28-days of active service with 10 years, 5 months, and 13 days of prior active service. 









4.On 11 September 2022, in the processing of the ABCMR Docket NumberAR20190000315, HRC provided an advisory opinion regarding the applicant's request forthe correction of his PEBD from 13 June 1993 to 7 September 1989. The advisory officialstated the Health Service Division reviewed the applicant's request and relevantdocuments in his service record and confirmed his PEBD should remain 13 June 1993.His PEBD was adjusted upon his reappointment in the USAR to the Medical Corps on 24 May 2003. The time he spent participating in the HPSP is statutorily excluded as creditable service for computing longevity pay and determining his PEBD. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined relief was not warranted. The applicant's contentions, the military record, and regulatory guidance were carefully considered.  Based upon the available documentation and the findings and recommendations of the HRC advisory opinion, the Board concluded there was insufficient evidence of an error or injustice warranting a change to the applicant’s record. The Board considered the applicant’s contention that, because he was transferred into the IRR as a requirement of VSIP, that four year period while he was in the HPSP should be counted towards his PEBD. However, the Board found the statute, DoD policy, and Army regulation (as well as the HPSP agreement the applicant voluntarily signed) were extremely clear that the time he was a member of the HPSP cannot be counted in determining his pay entry basic date. Rather the time he sent in the HPSP is statutorily excluded as creditable service for calculating the PEBD. The relief sought by the applicant is precluded by statute. 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. 

Microsoft Office Signature Line...
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.Army Regulation (AR) 135-200 (Active Duty for Missions, Projects, and Training forReserve Component Soldiers), prescribes policies and procedures for ordering ArmyNational Guard, Army National Guard of the United States, and U.S. Army ReserveSoldiers to other training duty, annual training, initial active duty for training, active dutyfor operational support–Reserve Component, active duty for operational support–ActiveComponent, contingency operations–active duty operational support, administrative–active duty for operational support, operational active duty for operational support  andfull-time National Guard duty for operational support. Paragraph 3 -3 (HealthProfessions Scholarship Program), Participants will be assigned to USAR ControlGroup (Officer Active Duty Obligor (OADO)). Military service performed while aparticipant of the HPSP will only be counted in determining eligibility for retirement byreason of a physical disability incurred while on Active Duty as a participant of HPSP.Computation of service creditable for pay under 37 USC 205(a)(7) that provides formedical, osteopathic, and dental graduates is no longer applicable. After
14 September 1981, the crediting of constructive service for medical or dental trainingor internship is not authorized.

2.Department of Defense Financial Management Regulation 7000.14, volume 7a,chapter 1, prescribes the criteria for determining creditable service for military members;provides examples for computing valid creditable service; states periods of service thatare not creditable for pay purposes; cites conditions for the payment of military payentitlements; explains the computation of leave and conditions for leave accrual; andprovides for situations where enlistments are not valid.

a.Paragraph 010102 (Computation of Creditable Service), for most members whoenter and serve on active duty without a break in service, the basic pay date is the date the member enters active or inactive service. If, however, there is a break in service, the time between periods of service usually is not included. Also, there are statutory periods when service in a particular component may not be counted. Conversely, there are periods for which some members are given constructive service, even though they were not actually serving on active or inactive duty. Use the following to compute basic pay date when there has been a break in service of any kind or if there is a need to include constructive service. 
 
 b.  Paragraph 10201 (Service not Creditable) the time a member serves while enrolled in the Armed Forces Health Professions Scholarship and Financial Assistance Programs, or while a student at the Uniformed Services University of Health Sciences (USUHS). Use any time creditable on the date the member enters USUHS to compute basic pay for longevity purposes while a student, not to exceed the limit of grade O-1or O-1E. 
 
3.  Title 10 USC, chapter 105 (Armed Forces Health Professions Financial Assistance Programs), section 2126 (Member of the program: service credit), (a) Service Not Creditable, except as provided in subsection (b), service performed while a member of the program shall not be counted: (1) in determining eligibility for retirement other than by reason of a physical disability incurred while on active duty as a member of the program; or (2) in computing years of service creditable under section 205 of Title 37. 
 
4.  Title 10 USC, section 1175 (Voluntary Separation Incentive), may provide a financial incentive to members of the armed forces described in subsection (b) for voluntary appointment, enlistment, or transfer to a reserve component. Service members who shall serve in the Ready Reserve, after separation from active duty, for a period of not less than three years. 
 
5.  Department of Defense Instruction (DoDI) 6000.13 (Accession and Retention Policies, Programs, and Incentives for Military Health Professions Officers (HPOs)), to establish policy, assign responsibilities, and prescribe procedures for military Department payment of incentives and bonuses to HPOs. d. (Military Status and Participation Requirements), (10) a, (Service Not Creditable),   In determining eligibility for retirement other than by reason of a physical disability incurred while on AD as a Program participant; or in computing years of service creditable. 
 
6.  AR 601-141 (U.S. Army Health Professions Scholarship, Financial Assistance, and Active Duty Health Professions Loan Repayment Programs), sets policies and procedures for implementing the Army portion of the F. Edward Hebert Armed Forces Health Professions Scholarship and Financial Assistance Program. Paragraph 2-9 (Determination of creditable service), military service performed while a member of the program will not be counted: (1) In determining eligibility for retirement other than by reason of a physical disability incurred while on active duty as a member of the program; or (2) In computing years of service creditable under Section 205, Title 37, United States Code (37 USC 205). b. Exceptions to 2–9a(1) and (2), above, may be made pursuant to 10 USC 2126(b). 
 
//NOTHING FOLLOWS//