Petition for Writ of Certiorari — Bawcum v. Marsh

Supreme Court brief1986

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IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1986

JAMES L. BAWCUM, PETITIONER

JOHN O. MARSH, Jr., SECRETARY OF THE ARMY

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

BRIEF FOR PETITIONER

PAUL MICHAEL VUKSICH

ATTORNEY FOR PETITIONER

244 KEARNY STREET

SAN FRANCISCO, CALIFORNIA 94108

TELEPHONE (415) 421-6438

QUESTIONS PRESENTED

l. Under 10 U.S.C. 1163(d), a

member of the reserve component of the

Army who is on active duty and is

within two years of becoming eligible

for retirement pay or retainer pay

under a military retirement system, may

not be involuntarily released from that

duty before he becomes eligible

for that pay, unless his release is

approved by the Secretary of the Army.

Is the decision of the Army Board for

the Correction of Military Records

(ABCMR) that at the completion of an

active duty tour on May 21, 1984, the

petitioner was not entitled to service

credit which would place him within two

years of eligibility for retirement,

Supported by substantial evidence, not

arbitrary or capricious, and not

otherwise contrary to law?

2. Did the district court and

the court of appeals apply the correct

Standard of review to the ABCMR decision

in light of the unique circumstances of

this case?

aid te

TABLE OF CONTENTS

Page

Opinions HDelOW..cccccccccccccccsecs 1

JULISGICEION. cecccevcccscvcccccveee 2

Statutes and regulatiOnS...creesee 2

STACOMENE a ccccceceessesseeessesecece 16

ATGUMCNL. ceccccccccsesesevesseveses 25

PPI ECRs pee eee eeseeeveeeesrveses Si

Appendices

Memorandum, Court of Appeals. A

Judgment/Order District

COULFC. cocccccccccccseecsccces B

ABCMR Memorandum of

CONSIGEration. eececeesccves S

Denial of Rehearing,

Court Of AppealS..cceccccces D

ARPERCEN letter, January l,

i)! Arrears ee eee ee E

ARPERCEN letter, May 17,

USE meee ee scecccescccecces F

Stipulation to ABCMR

FOViSWecccccccccccccecccves G

LTC Jelen Declaration. .....2. H

-lii-

TABLE OF AUTHORITIES

Page

Cases:

Borys v. U.S., 201 Ct.Cl.

S97 CADTS) cccccesecccceeers 47

Cass v. U.S., 417 U.S. 72

(1974) wcccccccccceccceceecs 50

Citizens to Preserve Overton

Park, Inc. v. Volpe, 401

UeS. 402 (LST) ccccacecsess 47

Fenwick v. Finch, 439 F.2d

B31 CLDT IL) cccccccccescceses 40

National Welfare Rights

Organization v. Mathews,

S33 Fed G37 CADIS) cenccces 41

Perkins v. Matthews, 400

U.S. 379 (L971) cccccccceccss 46

Phoenix Title and Trust Co,

v. Stewart, 377 F.2d 978

(StH Cie. WHEE) ecccccececser 45,48

Ritter v. Morton, 513 F.2d

942 (Sth Cif. USTMB)ececesese 42-45

Stauffer Laboratories, Inc.

V. Frc, 343 F.aG fo (9CR

Gute 5S) 646666646066 666608 44

U.S. Vv. United States Gypsum

Co., 333 U.S. 364 (1948)... 39

Statutes and regulations:

10 U.~S.C~w 1O1(22) weceeccveees 3

10 U.S.C. 1163(d) w.cceeceeeee 2,13,35

190 U.~S.Cw 1331 cecvccvvecveee *

10 U.~.S.Cw 1332 cecvcncevcvves 5

10 U.S.C. LIBS ccccccccsece 5¢607,49

10 U.S.Ce L405. cc ccccccceeee 4449,50

-iv-

Page

10 U.~.S.Cw 1552(a) wecccecceeee 14

10 U.S.Cw 39lLL we cceweccccvveee 3,49

10 U~.S.Cw 3926. ccc cccccccceee 3,49

10 UeS.Cw B99 ccc vcccccceee 4449,50

28 U.S.C. 1254(1) cece cceveeeee 2

28 U.S.Coel33leccccccccvvcees 24

Department of Defense Pay and

Allowance Entitlements

lo ) ere ee ee ee ee ae ee 10,33

Joint Travel Regulation...... 8,11,30,34

AR 15-185 (5/18/77) eeeeereceee eee 14,15

AR 135-200 (1/1/83) .wecceeee 7,8,9,12,30

31,34,35

AR 135-210 C2 SE JO2Z) cvccacesesedceaess 7,8

AR 140-185 (SJL STS) ccccctsessesss 6

AR 635-100 (chg. FFaOsO4) 6c cob bes 33235

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1986

NO.

JAMES L. BAWCUM, PETITIONER

JOHN O. MARSH, Jr., SECRETARY OF THE ARMY

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

BRIEF FOR THE PETITIONER

OPINIONS BELOW

The memorandum of the court of

appeals [App. Al-A5] and the judgment/

order of the district court [App. B1-BS]

are unreported. The memorandum of

consideration of the Army Board for the

Correction of Military Records (ABCMR)

is found in the appendix hereto at

JURISDICTION

The judgment of the court of

appeals was entered on November 4, 1985.

A petition of rehearing was denied on

December 6, 1985 [App. D]. The petition

for a writ of certiorari was filed on

January 8, 1986. The jurisdiction of

this Court is invoked under 28 U.S.C.

1254(1).

STATUTES AND REGULATIONS INVOLVED

l. 10 U.S.C. 1163(d) provides:

"Under regulations to be

prescribed by the Secretary

concerned, which shall be as

uniform as practicable, a

member of a reserve component

who is within two years of

becoming eligible for retired

pay or retainer pay under a

purely military retirement

system, may not be involuntarily

released from that duty before

he becomes eligible for that

pay, unless his release is

approved by the Secretary."

pertinent

10 U.S.C. 3911 provides:

"The Secretary of the Army

may, upon the officer's

request, retire a regular or

reserve commissioned officer

of the Army who has at least

20 years of service computed

under section 3926 of this

title, at least 10 years of

which have been active service

as a commissioned officer.”

10 U.S.C. 3926 provides in

part:

“(a) For the purpose of

determining whether an officer

of the Army may be retired

under section 391l...of this

title, his years of service

are computed by adding (1) all

active service performed as a

member of the Army..."

10 U.S.C. 101(22) provides:

""Active duty* means full-time

duty in the active military

service of the United States,

It 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."

-3-

_ 10 U.S.C. 3991 provides in

pertinent part:

"The monthly retired pay of a

person entitled thereto under

this subtitle is computed

according to the following

table...

Formula A, for section

3911...years of service

credited to him under section

1405 cf this title."

6. 10 U.S.C. 1405 Years of

Service provides in pertinent part:

"For the purposes of section...

3991 (formula A)..., the

years of service of a member

of the armed forces are

computed by adding--(1) his

years of active service;...(3)

the years of service, not

included in clause (1) or (2),

with which he would be entitled

to credit under section 1333

of this title if he were

entitled to retired pay under

section 1331l1/ of this title."

as 10 U.S.C. 1331 and following

begins a chapter involving a nonregular

retirement system for reservists. 10

U.S.C. 1405 allows crediting of certain

nonregular retirement points to the

regular retirement system of 10 U.S.C.

3991,

-4-

4% 10 U.S.C. 1333 provides

in pertinent part:

"For the purpose of computing

retired pay of a person under

this chapter, his years of

service and any fraction of

such a year are computed by

adding--(1) his days of active

service...(3) one day for

each point credited to him

under clause (B) or (C) of

section 1332(a)(2)2/ of this

title, but not more than 60

days in any one year; and...

by dividing the sum of that

addition by 360."

2/ 10 U.S.C. 1332(a) (2) governs

how a reservist receives credit for a

"good year" of service under the non-

regular retirement system. A good year

requires a minimum of 50 points which

may be earned in a variety of ways

including non-active duty (weekend

warrior) service. Reservists may earn

more than the 60 day limit if the

service is active duty.

-5-

8. Army Regulation (AR) 140-185,3/

paragraph 2-1 provides in pertinent

parts:

"The limitations on the

number of points which may be

credited to a member during a

retirement year are--

a. Maximum - 365 (366

during leap year) points...."

Oe AR 140-185 applies anly to

members of the United States Army

Reserve, both on active and non-active

duty. If the 10 U.S.C. 1333 denominator

of 360 is applied to eligibility for

retirement pay as well as to amount of

retirement pay, a reservist over a 20

year period could conceivably reach

retirement eligibility 104 days sooner

than his regular counterpart. He will

certainly be paid for 104 more days

although the same dates of service

applied to each.

9. AR 135-2004/ provides in

pertinent part:

"The date of entry on duty

will not be shown on order,"

Paragraph 1-15,

"The date of release from duty

will not be shown on the

orders."

10. AR 135-2104/ provides in

pertinent part:

4/ In the ABCMR decision, the

ABCMR refers to a portion of the comments

furnished by the office of the Judge

Advocate General (OTJAG). See App. C8

and C51. AR 135-200, paragraphs 1-13

and 1-15 and AR 135-210, paragraph 4-2,

are given by OTJAG as authority for the

proposition that a "period of active

duty” includes travel time. This is

exactly contrary to what these regula-

tions provide. AR 135-200, paragraph

1-7b.(2), is even more clear when it

States that the period of active duty

will not include travel time. This

error by the ABCMR and OTJAG is the

nucleus of why the ABCMR decision is

absolutely wrong.

Paragraph 4-2,

"The date of entry on active

duty will not be shown on the

orders."

ll. AR 135-2004/ provides in

pertinent part:

Paragraph 1-7b.(2),

"The period of training will

not include travel time to or

from the duty station."

12. JOINT TRAVEL REGULATION,

Appendix J, Subparagraph P, provides in

pertinent part:

"PERMANENT CHANGE OF STATION

»e«eeincludes the change from

home or from the place from

which ordered to active duty

to the first permanent duty

Station upon...call to active

duty for 20 weeks or more or

active duty for training for

20 weeks or more...

It further includes the change

from the last permanent duty

Station to home upon...release

from active duty to which

called for 20 weeks or more..."

13.

AR 135-200, paragraph 1-7

b.(1) provides in pertinent part:

14.

provides:

"The permanent home address

(home of record) is the actual

place in which the member

lives...The place listed as

the permanent home address

will constitute the 'home' or

"home of record' as used in

Joint Travel Regulations

(JTRS) and the Department of

Defense Military Pay and

Allowances Entitlements Manual

(DODPM). Orders issuing

agencies may correct a home of

record by amendment if it will

be published before the member

enters duty. Orders will not

be amended after the member

enters on duty unless approved

by ARPERCEN."

AR 135-200, paragraph l-llc.

"Training for 90 days or more,

(1) Travel time will be based

on the mode of transportation

authorized and actually used.

If travel by POV is specifi-

cally authorized and actually

used, travel will be computed

using POV travel time. If a

member authorized to travel by

POV uses public transporta-

tion, the travel time will be

computed using the mode of

public transportation used,

(2) The travel time allowed

to return home will be computed

as follows, regardless of the

type of transportation used:

(a) If POV is authorized and

the member submits a statement

of intent to travel by

that mode, travel time will be

computed using POV travel

time.

(b) Travel time will be

-computed using surface trans-

portation if POV is not

authorized. The same is true

if POV has been authorized and

the member indicates he or she

does not intend to travel by

POV."

i5. Department of Defense military

Pay and Allowances Entitlements Manual

(DODPM), paragraph 10241, provides in

pertinent part:

"a. Reserve members called

to active duty are entitled to

active duty pay and allowances

for time allowed for necessary

travel:

=}Q-

(1) From home to first duty

Station; and (2) from last

duty station to home...

b. Any amounts due a member

for active duty, or for return

home after release from such

duty, may be paid before

member leaves the duty station,

without regard to actual

performance of the travel...."

16. Joint Travel Regulations,

Members of the Uniformed Services,

Volume 1, (JTRS), paragraph M4156,

provides in pertinent part:

"When a member travels under

the circumstances described

herein, allowances will be as

indicated in each case....

Case 3. Member Ordered

Permanent Change of Station

While on Temporary Duty

A member who receives

orders while on temporary duty

directing a permanent change

of station may be authorized

permanent change-of-station

allowances from the temporary

duty station to the old

permanent duty station and

then to the new permanent duty

station via any temporary duty

-lil-

station...Travel allowances

prescribed by this case may be

authorized...only when the

member must travel to the old

permanent duty station to

arrange for shipment of

household goods, to pick up

personal possessions, or to

bring his privately owned

conveyance to the new permanent

duty station."5/

17. AR 135-200, paragraph 5-4,

provides in pertinent part:

"APPROVAL AUTHORITY

Requests for SADT tours

will be sent through command

channels to one of the approv-

ing authorities in a through f£

below:...

b. Deputy Chief of Staff for

personnel (DCSPER). Authority

for the following tours:

(1) A member who would

be credited with 18 or more

years of active Federal

S/ This regulation shows that a

member is alwa$s expected to move his

personal vehicle when the Army changes

where he is required to live, except

possibly when outside the continental

United States (OCONUS). Otherwise,

travel by personal vehicle (POV) is

always authorized incident to a perma-

nent change of station (PCS).

=) 2=

service at anytime during the

SADT tour....

e. Commanders, FORSCOM,

TRADOC, USAREC, and ARPERCEN

for USAR tours of 179 days

or less...."6/

18. Interim Change Nc. I107 to

-AR 635-100 adds paragraph 3-19.1,

which provides in pertinent part:

“Officers who are within

two years of eligibility

for military retirement

pay will not be involun-

tarily released from

active duty until eligible

for such retirement.

Exceptions to this policy

6/ DCSPER is the senior personnel

officer for the Department of the Army.

His counterparts at FORSCOM, TRADOC,

USAREC, and ARPERCEN are subordinate.

The Army knows that a reservist on a

SADT tour like the petitioner is entitled

to the sanctuary protections of 10

U.S.C. 1163(d) if on the tour he accumu-

lates in excess of 18 years of service.

That is why the most senior Army head-

quarters reserves the decision to offer

such a tour to a reservist who will go

over 18 years. In this case, ARPERCEN'S

poor records caused DCSPER to lose his

chance to decide.

-l]3-

19.

pertinent

20.

will be made only with the

approval of the Secretary of

the Army."

10 U.S.C. 1552(a) provides in

part:

"The Secretary of a military

department, under procedures

established by him and approved

by the Secretary of Defense,

and acting through boards of

civilians of the executive

part of the military department,

may correct an error or remove

an injustice....Except when

procured by fraud, a correc-

tion under this section is

final and conclusive on all

officers of the United States,"

AR 15-185, paragraph 19 e.(1)

provides in pertinent part:

"The Army Board of Correc-

tion of Military Records is

authorized to take final

action on behalf of the

Secretary of the Army, under

10 U.S.C. 1552, in approving

the correction of military

records, provided such action

(1) has been recommended by

the Army Staff; (b) is agreed

to by the Board; and (c) falls

into one of the following

categories:...

-14-

(i) Award of reserve partici-

pation credit in computation

of years of satisfactory

service where such service was

improperly or erroneously

credited."

=)5<

STATEMENT

l. The petitioner, James L.

Bawcum, holds a commission in the grade

of Lieutenant Colonel in the United

States Army Reserve. He is currently on

active duty at the Presidio of San

Francisco under the authority of special

active duty for training (SADT) orders

which would have terminated on May 2l,

1984, but for an intervening temporary

restraining order issued by the district

court and extended by stipulation of the

parties through the hearing on the

cross-motions for summary judgment in

district court. The petitioner remains

on active duty at the Presidio incident

to stay orders issued by the court

of appeals.

2. The petitioner received his

commission in 1958 and served for a

-16=

period of almost 15 years, including two

tours of duty in Vietnam, until he was

released from active duty due to a

reduction in force (RIF) in 1974. He

was understandably bitter and for four

years did not even open correspondence

from the Army. Finally, in 1978, he did

open correspondence from the Army which

invited him to seek additional active

duty credit. He then made the decision

to participate in the reserve program,

For the remainder of 1978 through 1980,

the petitioner used the active duty for

training program to increase his military

skills. He went on his required annual

training, attended military exercises |

and schools, and on his own time acquired

additional military logistical skills.

Suddenly in 1981, things changed. The

Army had no one available on active duty

=) 7=

with his newly acquired logistics

skills.7/ From 1981 to the present,

the Army has asked the petitioner

to take a series of special active duty

for training tours because no one on

active duty was available to do the

work. He has worked on this project at

Headquarters Department of the Army,

Headquarters Forces Command (FORSCOM),

First Army, and now Sixth Army. He

started at the senior headquarters and

moved down to the armies,

3 In January 1982, the petitioner

and all other Reservists received a

7/ The petitioner had been

trained in the bar code inventory

accounting system commonly used in

grocery stores. The Army was in the

process of adopting this optical

inventory system for controlling its

equipment such as spare parts.

letter8/ from the U.S. Army Reserve

Components Personnel and Administration

Center (RCPAC now ARPERCEN) introducing

a "Retirement Points Accounting System."

The letter said ARPERCEN fully realized

that its historical data on reservists

might be incomplete or incorrect but

requested that reservists not attempt to

correct their records until they received

a second annual statement under the

system. The petitioner never received a

second annual statement.

Ss On January 3, 1984, the

petitioner began a SADT tour at the

Presidio of San Francisco which was to

8/ The letter is found in the

appendix at El. It provided in part at

E4: "DO NOT ATTEMPT to correct the

historical section until you receive the

second annual statement under this

system,"

~1—

terminate on May 21, 1984. On April 27,

1984, the petitioner sent a letter to

the commander of ARPERCEN wherein he

claimed that as of May 21, 1984, he

would be entitled to service credit in

excess cf 18 years and gave notice that

under the sanctuary provisions of 10

U.S.C. 1163(d) he wished to remain on

active duty until eligible for retire-

ment. On May 8, 1984, the petitioner

sent a letter conveying the same message

to the Secretary of the Army. After

filing this action in district court,

the petitioner received an answer from

=-20-

the ARPERCEN commander responding to

both inquiries.9/

On May 17, 1984, the petitioner

filed the original action in district

court seeking to enjoin his release from

active duty. This district court ruled

that the petitioner had been prevented

from exhausting his administrative

remedies and determined that it would

decide the 18 year issue. The petitioner

subsequently stipulated to the ABCMR

deciding the service issue on the

condition that the Army make a “thorough

oy The answer is found in the

appendix at F1-F7. The shibboleth

language is instructive, e.g., "complete,

thorough analysis" and "comprehensive

review." The petitioner submitted the

same supporting documents to the ARPERCEN

commander and the ABCMR [which sent them

to him]. The first time, ARPERCEN

credits 17 years, 7 months and 27 days:

the next time 17 years, 11 months, and 1

day. The variance is not mainly a

result of examining pay records.

~2li-

and good faith effort" to determine his

active federal service entitlement as of

May 21, 1984. [Stipulation, appendix

G1-G3.] The decision of the ABCMR was

that as of May 21, 1984, the petitioner

was entitled to service credit for i7

years and 329 days, i.e., 36 days less

than 18 years.

6. On January 30, 1985, the

petitioner filed a motion for review of

the ABCMR decision and for summary

judgment.10/ The respondent filed a

10/ Prior to filing petitioner's

brief, the petitioner and respondent

Stipulated to an additional 25 days of

credit which had been overlooked by the

ABCMR, leaving petitioner 11 days short

of 18 years service.

-22-

cross-motion for summary judgment.11/

The district court found that the ABCMR

decision was supported by substantial

evidence, not arbitrary and capricious,

and not contrary to law; and granted

summary judgment to the respondent.

[Judgment/Order, App. B1-B5.]

te On April 26, 1985, the peti-

tioner noticed his appeal. On September

9, 1985, the court of appeals heard oral

argument and the matter was submitted.

During oral argument, respondent's

ll/ The respondent used a declara-

tion of a LTC Jelen in support of its

motion. The petitioner challenged LTC

Jelen's expertise, but the district

court did not rule on this issue prior

to ordering the case submitted. The

court of appeal cited LTC Jelen's

declaration as de novo review rather

than as an adverse expert witness.

Relevant portions of LTC Jelen's

declaration are set out in the appendix

at Hl-Hll.

-23-

attorney indicated petitioner might only

be as little as 2 days short of 18 years

but the Army was not sure. The court oj

appeals affirmed.

8. The basis for federal juris-

diction in the district court is found

in 28 U.S.C. 1331.

~24~

ARGUMENT

The petitioner seeks allowance of

his petition for a writ of certiorari

for the following, independent reasons:

a. the court of appeals has so

far departed from the accepted and usual

judicial proceedings,

Db. the court of appeals has so

far sanctioned the departure from

accepted and usual judicial proceedings

by the district court, and

Ce the court of appeals has

decided an important question of federal

law which has not been, ‘but should be,

settled by this Court.

To help clarify issues involving

the counting of days, the petitioner

provides the following summary comparison

of the days of service awarded by the

-25-

ABCMR to the petitioner and those given

by LTC Jelen.

NET

LINE#12/ ABCMR13/ JELEN14/ DIFFERENCELS/

l. 12 13 +1

2. se 14 +]

3. 27 27 0

4. 33 31 ~2

Se 19 12 =7

6. 38 38 0

Te 19 19 0

8./9. 407 418 +11

10. 13 13 0

ll. 123 122 =%

12. 224 229 +8 & «3

13. 140 152 +12

+33 & “3%

12/ LINE # refers to periods of

service found on the 20 August 1984,

DARC Form 2610, which is part of the

~ABCMR decision at App. C46, C47. The

petitioner and respondent agreed to

number the lines from top to bottom,

discounting the 14 year period, for ease

of reference,

13/ ABCMR days are found on the

DARC Form 2610 which the Board adopted

as to periods of service. See App., Cl(

14/ JELEN's days are found at App.

H8, H9.

15/ Line 12 requires understanding

Jelen's explanation found at App. H5-H7.

=26=

THE ABCMR DECISION

The ABCMR decision does not

address the claims made by the petitioner,

is wrong on its face, and does not repre-

sent a thorough and good faith effort to

determine petitioner's active duty service.

The ABCMR did not fully consider

the petitioner's application to correct

his records. Under penalty of perjury,

the petitioner told the ABCMR the follow-

ing: periods of active duty, travel

time claimed, and travel mode. [Question

No. 13 to the application at App. Cl7

refers to the enclosure found at C24,

C25 which makes these claims]. No one

examined the claims for travel time.

Mr. Golden said the petitioner's pay

records were used to compute his travel

time for the purpose of the DARC Form

2610. App. C43. Pay records only show

29a

what travel time the Army has already

allowed and paid for. They are silent

as to ward teawek time should have been

allowed based upon orders. The ABCMR

decision incorporated Mr. Golden's

statement and goes on to say that in

OTJAJ's opinion, allowable travel time

had been included in the periods of

active duty. App. C6, C7. But that is

not what OTJAG said. OTJAG in its Comme

4 to the petitioner's application, said,

after examining the limited documents

that the petitioner was able to provide

[App. C26-C36 orders], that as to those

documents, travel time was included in

the period of active duty and cited

authority. App. C51. The authority

cited by OTJAG is absolutely contrary t<

the regulations which govern the prepari

tion of orders as outlined supra in

-28=

Footnote 4, Travel time is added to

either or both ends of the period of

active duty. That is what the petitioner

was Claiming. OTJAG then goes on to

assume that Mr. Golden included travel

time in the DARC Form 2610 periods.

App. C54. In summary, Mr. Golden

examined pay records without evaluating

petitioner's claims. OTJAG examined

orders attached to the application and

did not consider additional travel time

because it misinterpreted the regulations

and thought Mr. Golden had evaluated the

travel time claims when he had in fact

Only examined pay records. No one

evaluated the petitioner's claims under

regulations which control travel time.

Any period of service 140 days or

longer entitled the petitioner to travel

by his personally owned vehicle (POV).

=29=

JTR, Appendix J, Subparagraph P. Lines

8/9, 12, and 13 meet this qualification.

The petitioner was entitled to travel by

POV from his home given on the orders to

the duty station and back home. AR

135-200, paragraph 1-7 b.(1). On Line

13, the very tour the petitioner is

currently on under orders authorizing

POV travel, the ABCMR, Mr. Golden, OTJAG

and ARPERCEN did not understand that the

petitioner was owed travel time from his

home in Waco, Texas, to Presidio of San

Francisco and back. Lit Jelen picked up

this point in his declaration at App. H7.

On Line 12, the same oversight was made.1l

16/ The mistake is not exactly the

same. The ABCMR seems to have recognized

that POV travel was authorized and that

the petitioner had in fact been paid for

9 days travel from the duty station to

his home on the orders. Why the ABCMR

did not find that the petitioner was

entitled to a like period going to his

duty station is unknown.

=30-

Again, LTC Jelen catches the mistake at

App. H5-H7. But he then makes a mistake.

Travel time is based upon the home

address given on the orders unless

amended before the tour begins, or after

the tour begins, with ARPERCEN approval.

AR 135-200, paragraph 1-7 b.(1). There

was no amendment of the home. See App.

C30-33. On Line 8/9, even LTC Jelen

cannot help. In his application, the

petitioner provided an order at App. C34

which shows conclusively that there is

no break in service between the two

periods. Although he reviewed the

application, LTC Jelen could not find

this attached order. See App. Hl. Mr.

Golden might have discovered this fact

but he was not examining petitioner's

-3l-

claims but instead looking for pay

records.17/ Line 8/9 has another

error. During this continuous period of

416 days, the petitioner went from his

home to Albuquerque, New Mexico, to

Washington, D.C., back to Albuquerque,lt

then to Atlanta, Georgia, and would hav.

traveled back to Albuquerque Dut for the

respondent asking him back on active

duty after a short break in service,

For all this travel in his POV the

petitioner was given 2 days of travel

17/ It is a mystery why Mr. Golde!

did not discover that the petitioner ha

been paid for this 11 day period since

respondent's counsel gave petitioner's

counsel a copy of the pertinent pay

record and LTC Jelen found it.

18/ The petitioner returned to

Albuquerque to pick up his family,

move his furniture, and to ship persona.

effects.

time. The tour in Washington, D.C. was

less than 140 days, a temporary duty.

But the tour in Georgia was continuous

PCS duty which was tacked on to the

temporary duty without a break. There-

fore, the petitioner is entitled to the

travel time authorized in Case 3,

paragraph M4156, of the JTR. Even

without case 3, the petitioner, at a

minimum, is entitled to travel from his

last duty in Atlanta and entitled to

credit whether he does or not. DODPM

410241. In summary, the patent ABCMR

mistakes are:

-33-

Line 13 12 days

Line 12 9 days

Line 8/9 no break ll days

Line 8/9 travel 16 or 5 daysl9/

Therefore, the petitioner has more than

the 36 days the ABCMR claims he lacks.20,

The ABCMR and ARPERCEN did not

make a thorough and good faith effort to

determine the petitioner's active service

19/ The POV travel rate is 300

miles/day plus one day for a remainder

greater than 150 miles. Washington,

D.C. back to Albuquerque is 1824 miles

or 6 days. Albuquerque to Atlanta is

1381 miles or 5 days, 10 days round

trip. JTR, M1050, 2. Even if by some

leap of logic POV travel incident to a

PCS move in the continental United

States is not authorized, the petitioner

must be paid for travel time by surface

transportation. AR 135-209, paragraph

l-llic.

20/ The petitioner need only

overcome the 29 day deficit ARPERCEN

found. This issue, as well as OTJAG's

Opinion regarding division of a reservist

days of active service by 360 to determir

years of service, will be considered in

the section reviewing the memorandum of

the court of appeals.

-34-

The petitioner was placed in the position

of creating a record for the ABCMR

because ARPERCEN had not provided a

record of service credit as it had

promised and told the petitioner to do

nothing about it. That is why the

district court concluded the petitioner

was prevented from exhausting his

administrative remedies. When the

petitioner attempted to protect his

rights by giving notice of his desire to

remain on active duty, ARPERCEN realized

that under the provisions of 10 U.S.C.

1163(d) and Interim Change No. I07 to AR

' 635-100 the petitioner was entitled to

remain on active duty if in fact he had

18 years of service. And this had

happened without approval of his higher

headquarters as required by AR 135-200,

paragraph 5-4. On behalf of the Secretary

=-35-

of the Army, ARPERCEN found that the

petitioner had less than 18 years,

claiming the exhaustive review in

Footnote 9.21/ Shortly thereafter

ARPERCEN was notified to compute the

petitioner's service for the ABCMR.

Even with additional documentation

provided in the petitioner's application

ARPERCEN took back some service credit

it had previously given although it was

compelled to give in net terms more

credit in light of clear documentation.2

ABCMR review was no more thorough or

in good faith as is clear from page 4

21/ At this juncture, ARPERCEN

gave credit for 17 years, 7 months, and

27 days. Later ARPERCEN gave credit for

17 years, 11 months, and 1 day.

22/ Compare App. C46, C47 and F6,

F7. On the last period, one day is

removed. On Line 8/9, a break in

service now appears although the order

at C34 shows no break.

=36~-

icon

{[App. C9-Cl2] of its decision. First,

it invokes a statute of limitations to

preclude review of records before June

1981.23/ Next, it states the applicant

claimed excess travel when no one had

applied the travel time regulations to

the periods of service. It also states

the petitioner counted one period of

service twice when the application

showed 13 lines [App. C24, C25] of

service as did the DARC Form 2610

[App. C46, C47]. Then the petitioner

confronts more shibboleth language,

"The applicant has not pre-

sented, and his records fail

to disclose, any evidence

which corroborates his self-

authored statement of service...”

23/ Counsel for the parties called

the ABCMR. The ABCMR knew that ARPERCEN'sS

letter had precluded the petitioner from

seeking correction earlier. The peti-

tioner's ABCMR application also said

this in answer to Question 12. App. C16.

= 37e

What about the orders the applicant

submitted at App. C26-C36? What about

the Line8/9 pay record? What about

applying travel pay regulations to

periods of service and examining

claims? The ABCMR also "notes" the

petitioner is seeking more than 366 day:

of service in a year when this is a

simple matter of whether one accounts

for a period of service by its beginnin

or ending date. ARPERCEN showed the

Same periods. Finally, the ABCMR says

the convoluted OTJAG method of computin

service is proper in "this" case

knowing full well that ARPERCEN uses the

DARC Form 2610 to compute service for

thousands of reservists. The ABCMR

and ARPERCEN did not make a thorough or

good faith review of the petitioner's

application,

~38-

THE DISTRICT COURT DECISION

The district court found that the

decision of the ABCMR is supported by

substantial evidence, is not arbitrary

and capricious, and is not otherwise

contrary to law.

The petitioner contends that the

district court's finding is clearly

erroneous, arbitrary and capricious, and

contrary to law. He further contends

that the district court and the court of

appeals applied the wrong standard of

review to Lines 8/9, 12, and 13.

A finding is clearly erroneous,

when, although there is evidence to

Support it, the reviewing court upon

reviewing the entire evidence is left

with the definite and firm conviction

that a mistake has been committed. U.S.

v. United States Gypsum Co., 333 U.S.364

=-39-

(1948). The foregoing discussion of th

ABCMR decision shows it is mistaken and

did not address the petitioner's claims

In addition, 36 days represents 1/2% of

the days in 18 years. The parties

Stipulated to an additional 25 days

incident to the cross-motions for

summary judgment, reducing the day

shortfall to 11 days or .1%.24/ At

this point it seems fair to say that th

district court should have been aware

that the ABCMR decision was seriously

defective. Then LTC Jelen's declaratic

is offered by the respondent as an

expert, adverse witness, LTC Jelen in

large part confirms the stipulation anc

24/ Stipulations of fact fairly

entered into are controlling and con-

clusive and courts are bound to enforces

them. Fenix v. Finch, 436 F.2d 83l

(3972).

-40-

1°)

concludes the petitioner is entitled to

credit for 17 years, 11 months and 19

days, i.e., 11 days short. But they are

not the same 1l days. As pointed out by

the chart supra, LTC Jelen took back 13

which cannot be done in light of 10

U.S.C. 1552(a)'sS conclusive effect and

because simple fairness should allow the

petitioner to appeal the ABCMR decision

rather than a changing decision.

The district court's finding that

the ABCMR decision was not arbitrary and

Capricious is wrong. If an adminis-

trative record is so insufficient as

to frustrate judicial review, it is

arbitrary and capricious and will not

be upheld. National Welfare Rights

Organization v. Mathews, 533 F.2d 637

(1976). On page 14 of the district

court transcript, the court below said:

=-4)<

"How can it be determined fro

the face of the memorandum

exactly what particular

calculations they had made,

what particular data they wer

relying on, and how they

interpreted it? It is stated

in all a very generalized

fashion....And there is no wa

to tell from the face of the

memorandum of decision exactl

what underlying documents it

looked at, how they considere

the particular calculations,

what methodology they used to

calculate. And, for example,

some of the issues that were

raised here, when they saw th

documents with respect to tha

particular, those particular

orders, how they calculated

the time."

The district court had before it an

insufficient administrative record.

The district court's findings may

not be upheld if based upon an erroneou

view of the law. Ritter v. Morton, 513

F.2d 942 (9th Cir. 1975). The petition

contends that eligibility for, as well

as amount of, retirement pay for a

-42-

reservist should be based on a 360 day

year.25/

The district court did not apply

the correct standard of review as to

Lines 8/9, 12, and 13. The periods of

service on Lines 12 and 13 are not

disputed by the parties, and the period

on Line 8/9 cannot be in light of the

order at App. C34, the days stipulation of

the parties in district court, and LTC

Jelen's declaration. The district court

was asked to apply legal standards (Army

travel regulaticns) to these undisputed

Or undisputable facts, without making

inferences. The standard of review as

to these lines was therefore "mere

error" because a question of law was

involved,

25/ This issue will be discussed

in the section reviewing the decision by

the court of appeals.

-~43-

Stauffer Laboratories, Inc. v. Federal

Trade Commission, 343 F.2d 75 (9th Cir.

1965). If the district court had

applied travel regulations just to these

four lines, the petitioner had over 18

years of service.

-44-

THE COURT OF APPEALS‘ DECISION

The court of appeals found that the

district court had used the appropriate

standard of review, that LTC Jelen's

declaration was de novo reviewed by the

Army, and that the Army's division of

the total number of days served by

365-1/4 was not arbitrary, capricious,

Cr contrary to law.

The district court's findings may

not be upheld if based upon an erroneous

view of the law. Ritter v. Morton, 513

F.2d 942 (9th Cir. 1975). Conclusions

of law are freely reviewable on appeal.

Phoenix Title and Trust Co. v. Stewart,

337 F.2d 978 (9th Cir. 1964). An

appellate court may enter judgment upon

reversing a case if it finds that the

facts are adequately developed in the

record and it is able to direct judgment

-45-

————

in favor of one party as a matter of

law. Perkins v. Matthews, 400 U.S. 379

(1971). The court of appeals made two

findings in law; the standard of review

and the 365-1/4 day year. From the

district court discussion supra, it is

clear that, as to Lines 8/9, 12, and 13

the court of appeals should have applie

the "mere error” standard of review.

The 365-1/4 finding will be discussed

later.

LTC Jelen's review was not de novo.

He was an adverse witness who purported.

was an expert on active duty computatiol

The petitioner challenged his expertise

but the district court did not rule

before it declared the case submitted,

The court of appeals was not free to

substitute its judgment for that of the

-46-

1s,

ABCMR. Citizens to Preserve Overton

Park, Inc. v. Volpe, 401 U.S. 402 (1971).

LTC Jelen's declaration is nothing more

than admissions by the respondent that

the ABCMR decision is wrong.

ARPERCEN and OTJAG gave the ABCMR

different methods of computing years of

service although both methods were based

on a 365/366 day year. The ABCMR chose

neither. It claims it adopted the OTJAG

method with its extraordinary complexity

found at App. C57, but avoids the

complexity by simply dividing everything

by 365-1/4.26/ In Borys v. U.S., the

26/ When ARPERCEN is forced by

this decision to use the OTJAG method of

computation of service for the thousands

of such computations it makes annually,

one wonders if it will be able to take

the same shortcut? OTJAG would not

approve, One cannot Dut conclude that

the OTJAG mimeograph computation work-

sheet is for desperate litigation

Situations only. See App. C60, Cé6l.

Army used the ARPERCEN method to compute

service. 201 Ct. Cl. 597, 603 (1973).

ARPERCEN is the agency that makes active

service computations. It created the

DARC Form 2610, entitled COMPUTATION OF

ACTIVE FEDERAL SERVICE, for that purpose

If the petitioner is correct that the

ABCMR decision is conclusive, then

respondent's admission via LTC Jelen's

declaration that an additional 33 days

should be added to the ARPERCEN total

more than overcomes the 29 day deficit.

The court of appeals and the

district court should not have found

that the ABCMR decision [that total days

should be divided by 365-1/4 rather than

360] was not arbitrary, capricious or

contrary to law. Statutory construction

is a legal question freely reviewable by

this Court. Phoenix, supra. The

~£6—

petitioner followed the statutes where

they lead. 10 U.S.C. 3911, 3926, 3991,

1405, 1333. A regular officer's eligi-

bility for retirement pay under 10

U.S.C. 3911 equates exactiy with the

amount of retirement pay under 10 U.S.C.

3991. So would a reservist's under the

petitioner's construction using a 360

day denominator. See Footnote 3. The

statutes and regulations do not state

how to convert days to years, but the

petitioner's construction is reasonable

given that 10 U.S.C. 1405 was an attempt

by Congress to coordinate the regular

and non-regular retirement systems where

a reservist might qualify for either.

The Army offers nothing to support its

construction. ARPERCEN computes the

service one way; but OTJAG computes it

another.27/ Congress might well have

intended a 20 year reservist to get a

slight break towards becoming eligible

for retirement given the much greater

uncertainty he faced compared to his

regular counterpart of ever attaining 2(

years of active federal service,

27/ This case is not analogous to

Cass ¥. U,8., 417 U.S. 72 (1976),

wherein this Court prevented five years

of continuous active duty time from

being pared down to 4-1/2 years by

application of the round off provisions

in footnote 4 of 10 U.S.C. 3991. This

case is one step removed from that

footnote to 10 U.S.C. 1405.

-50-

CONCLUSION

From the foregoing it is clear

the court of appeals has so far departed

from the accepted and usual course of

judicial proceedings and so far sanctioned

such a departure by the district court

and has decided an important question of

federal law affecting millions of

reservists which has not been, but

should be, settled by this Court, that

the petition for a writ of certiorari

should be granted.

Respectfully submitted.

Attorney for the Petitioner

Petitioner

=&)«

ppendix A is a Memorandum, Court of

ppeals, which was filed Nov. 4, 1985.

ext is as follows:

ot for publication

In the United States Court of Appeals

For the Ninth Circuit

James L. Bawcum, Plaintiff-Appellant,

John O. Marsh, Jr., Secretary of the

Army, Defendant-Appellee,

No. 85-1936

D.C. # CV 84-3136-MHP

MEMORANDUM*

Appeal from the United States District

Court for the Northern District of

California

Marilyn H. Patel, District Judge,

Presiding

Argued and submitted September 9, 1985

San Francisco, California

“i This disposition is not

appropriate for publication and may not

be cited to or by the courts of this

circuit except as provided by 9th Cir.

R. 21.

Before: WALLACE, HUG, and SCHROEDER,

Circuit Judges.

The plaintiff-appellant brought

this action in district court to

prevent his release from active duty

and to afford him the benefits of 10

U.S.C. § 1163(d). In order to qualify

for the protections accorded by section

1163(d), the plaintiff is required to

have served at least 18 years on active

duty. The district court ordered the

matter referred to the Army Board for

Correction of Military Records (ABCMR),

which fully considered appellant's

application to correct his records to

show that he had served the requisite

18 years. The Board determined that

the appellant had not completed 18

years of active service and denied the

appellant's application,

A-2

In addition to the ABCMR's review

of the records, the Army commissioned

a de novo review by Lt. Col. Jelen,

: which disagreed with the ABCMR's

; analysis in some respects, both favoring

and disfavoring the appellant, but

3 similarly concluded that the appellant

fell short of the 18 years. The

district court granted summary judgment

for the defendant, holding that the

decision of the ABCMR is supported by

substantial evidence, is not arbitrary

Or capricious, and is not otherwise

contrary to law. That is the appropriate

standard of review. See, e.g., Citizens

to Preserve Overton Park, Inc. Vv.

Volpe, 401 U.S. 402, 413-14 (1971);

Villa View Community Hospital, Inc. v.

Heckler, 720 F.2d 1086, 1090 (9th Cir.

1983). The issue on appeal is therefore

A-3

whether the district court erred in

granting summary judgment for the

government.

We have carefully reviewed the

appellant's contentions concerning

specific errors, including alleged

miscalculations of travel time computa-

tions. We agree with the district

court that the appellant has not

demonstrated that the Board was arbitrar

Capricious, or lacked substantial

evidence for deciding that the appellant

fell short of 18 years,

The Army's division of the total

number of days served by 365-1/4 rather

than by 360 as contended by the appellar

was not arbitrary, capricious or

contrary to law. The Board relied upon

a memo from the Office of The Judge

Advocate General which correctly

A-4

" pointed out that a year is in fact

slightly longer than 365 days, and that

the reference in 10 U.S.C. § 1033 to

division by 360 is for purposes of

calculating reserve retirement pay. It

is apparent from its language that it

does not apply to computing years

served for purposes of 10 U.S.C.

§ 1163(d).

Affirmed.

iia

’

‘Appendix B is a Order Granting Summary

Judgment in Favor of Defendant, U.S.

‘District Court, Northern District of

“California, which was received Apr. 23,

-1985, filed Apr. 26, 1985, and entered

in Civil Docket May 2, 1985.

Text is as follows:

;United States District Court

Northern District of California

James L. Bawcum, Plaintiff,

John O. Marsh, Jr., Secretary of the

Army, Defendant.

No. C-84-3136-MHP

ORDER GRANTING SUMMARY JUDGMENT IN

FAVOR OF DEFENDANT

Upon consideration of the motions

for summary judgment made by both

parties, the supporting memoranda,

exhibits and arguments thereon, and

good cause appearing, the Court

finds as follows:

Plaintiff brought this action

seeking a Temporary Restraining Order,

Preliminary Injunction and Permanent

Injunction against release from active

duty, which had been previously schedulé

to occur on May 21, 1984. Pursuant to

this Court's Order of May 17, 1984

restraining plaintiff's release pending

resolution of this action, which Order

has been extended to the present date

by stipulation of the parties, plaintif!

has been retained on active duty

status.

Pursuant to further stipulation of

the parties, and this Court's Order of

June 21, 1984, this matter was referred

to the Army Board For Correction of

Military Records (ABCMR), to determine

a proper accounting of plaintiff's

active duty credits. The ABCMR renderec

B-2

its decision in its memorandum opinion

of October 17, 1984, which concluded

that plaintiff had less than 18 years

active duty for the purposes of 10

U.S.C. § 1163(d).

The Court has reviewed the ABCMR

decision, and concluded that its

decision is supported by substantial

evidence, is not arbitrary and capri-

cious, and is not otherwise contrary to

law. Accordingly, it is hereby

ORDERED that plaintiff's motion for

summary judgment is DENIED and that

summary judgment in favor of defendant

is hereby GRANTED. The Court's Order

of May 17, 1985, restraining the

release of plaintiff from active duty,

is hereby DISSOLVED.

DATED: Apr. 26, 1985

[SIGNED]: Marilyn Hall Patel

United States District Judge

B-3

Appendix B continues with a second

pleading, which is a Judgment, U.S.

District Court, Northern District of

California, which was filed Apr. 30,

1985, and entered in Civil Docket May

i, 1985.

Text is as follows:

United States District Court

Northern District of California

James L. Bawcum, Plaintiff,

Soak O. Marsh, Jr., Secretary of the

Army, Defendant.

No. C-84-3136-MHP

JUDGMENT

Fed. R. Civ. P. 58

This action having come before

this court, the Honorable Marilyn Hall

Patel, United States District Judge

presiding, and the issues having been

duly presented and an order having been

duly filed herein,

IT IS ORDERED AND ADJUDGED that

plaintiff's motion for summary judgment

is DENIED.

IT IS FURTHER ORDERED AND ADJUDGED

that defendant's motion for summary

judgment is GRANTED, and that the

action is DISMISSED.

DATED: Apr. 30, 1985

[SIGNED]: Marilyn Hall Patel

United States District Judge

Appendix C is a ABCMR Memorandum of

Consideration, It is on ABCMR letterhead,

» and bears a stamp with the number

"1803",

' Text is as follows:

= sind taraackit asiat boabedal

Palos 20

END ete Marieet aie eeu vad catai Aloe au

| MEMORANDUM OF CONSIDERATION

IN THE CASE OF: BAWCUM, JAMES L.

464-48-9855

BOARD DATE: 17 October 1984

DOCKET NUMBER: AC84-03901

INDEX NUMBER: 100.00

I certify that hereinafter is

recorded the record of consideration of

the Army Board for Correction of

Military Records in the case of the

above-named individual, The following

members, a quorum, were present,

Mr. Oliver Kennedy, Chairman

Mr. Samuel T. Brick, Jr., Member

Mr. Frank J. Sando, Member

Mr. John W. Matthews,

Executive Secretary

C-l

The Board, established pursuant to

authority contained in 10 U.S.C. 1552,

convened at the call of the Chairman on

the above date. Army Regulation

15-185, the regulation governing the

operation of the Board, provides that

applications and the available military

records pertinent to the corrective

action requested will be reviewed to:

determine whether to authorize a formal

hearing; recommend that the records be

corrected without a formal hearing; or,

to deny the application without

formal hearing if it is determined that

insufficient relevant evidence has been

presented to demonstrate the existence

of probable material error or injustice.

The applicant requests correction

of military records as stated in the

application to the Board and as restated

herein.

The Board considered the following

evidence:

Exhibit A - Application for

correction of military

records

Exhibit B - Military Personnel

Records

APPLICANT REQUESTS: That he be properly

credited for all active duty (AD)

performed by him. His application is

dated 20 June 1984, and he states that

he discovered the alleged errors in his

records on 18 June 1984.

APPLICANT STATES: That the calculation

of his total numbers of days of active

duty (Ad) is incorrect; and that he

served on AD for the times shown on

Inclosure 1, which he feels is in

excess of 18 years AD. (The total

C-3

number of days shown on Inclosure 1 is

6600, and of that total, 1130 days are

for periods of duty after September

1973). Although not stated in his

application, the applicant is apparently

of the opinion that his years of AD

should be computed by adding all of the

days of AD actually performed by him

(up to a maximum of 366 per year), and

that the sum be divided by 360. In

support of his application, the applican

also submitted copies of various orders

to AD which have been issued to him, a

Chronological Statement of Military

Service, dated 22 August 1982, and a

letter from an attorney, who requests

that the Board determine the applicant's

total number of days of AD, and that

his total number of years of service be

computed from that total. He also

C-4

requests that he be informed of the

authority for the method of computation

employed by the Board, and inquires

whether the days of unused leave for

which the applicant has been paid at

various times are considered active

service,

MATERIAL EVIDENCE OF RECORD: In-

corporated in this memorandum and

included by reference are the military

and medical records which reflect, in

pertinent part:

The applicant served on active duty

from 19 September 1958 to 9 September

1973, when he was released from AD in

the grade of major. Since that date,

he has completed numerous short periods

of active duty, as shown on the attached

DARC Form 2610.

As of 21 May 1984, the applicant

has completed 17 years and 329 days of

AD. He is credited with 14 calendar

years of service for 1 January 59 - 31

December 1972 period, and 1425 days of

AD for service during the 19 September

1958 - 31 December 1958 and 1 January

1973 - 21 May 1984 periods; of that

total, 1069 days are for periods of

duty after September 1973. The 1425

days were converted to years and

remaining days of AD as follows:

1425 days = 3 years, 329 days

365.25 days (average number

of days per year)

On 20 August 1984, the Board was

advised by the Reserve Personnel Center

(ARPERCEN), in part, that the applicant’:

statement of active federal service has

heen recomputed using military pay

C-6

vouchers obtained from the Army Finance

Center, The computation (17 years, 1l

months, 1 day) allows active duty

credit for all travel time shown on the

pay vouchers. Based on the statement

of service, he did not have 18 years of

active duty on 21 May 1984, and is not

eligible for the lock-in provisions of

10 U.S.C. 1163. (copy attached).

On 5 October 1984, the Board was

advised by the Office of The Judge

Advocate General (OTJAG), in part, that

in the opinion of that office, the

formula for calculating years of

service stated in 10 U.S.C. 1336

(division by 360) does not apply in

this case. An officer's years of

service should be computed by first

crediting calendar years of service,

then adding all days of active service

C-7

during calendar years where the member

was not in active service for the full

year. The days are converted to years

and remaining days of service by

dividing by 365.25, the average length

of a year. Under this method (assuming

that the 20 August 1984 DARC Form 2610

is correct), the applicant had completed

17 years and 329 days of active service

as of 21 May 1984.

In the opinion of OTJAG, allowable

travel time permitted by regulations is

properly included in the periods of

active duty. It was also the opinion

of that office that the fact that the

applicant may have been paid for unused

accrued leave does not add any days to

the years of service. (copy attached).

Title 10, United States Code,

Section 1552, provides the statutory

C-8

authority for correction of military

records. Section 1552(b) provides that

no correction may be made unless the

claimant files a request on or before

26 October 1961, or within three years

after he discovers the error or in-

justice, whichever is later. However,

failure to file within three years

after discovery may be excused if the

Board finds it to be in the interest

' of justice,

' DISCUSSION: In consideration of all

the evidence, allegations and informa-

tion presented by the applicant, in

relation to the evidence from all the

Se a ee ee a ae ee

available records and statutory and/or

regulatory provisions pertaining

thereto, it is concluded that:

: l. With regard to all periods of

service ending prior to 20 June 1981,

C-9

the applicant has failed to make timely

application for correction of his

records, and he has failed to provide

any reason why the Board should find it

in the interest of justice to consider

that portion of his application.

Although he states that he discovered

alleged errors in his records in 1984,

the Board is of the opinion that he

knew of the amount of active duty

credited to him at the time he was paid

for each period of service, and the 3

year filing periods commenced on the

date of payment.

2. The Board is satisfied

that the beginning and ending dates of

the applicant's various short periods

of active duty which are shown on the

20 August 1984 DARC Form 2610, are

correct. The 61 days discrepancy

C-10

between the number of days of AD

claimed by the applicant for periods of

duty after September 1973 and the

number shown in his records is attribut-

able to his having credited himself

with excessive travel days, and ap-

parently counting one period of service

twice.

36 The applicant has not pre-

sented, and his records fail to

disclose, any evidence which cor-

roborates his self-authored statement

of service, which he feels shows the

completion of over 18 years of active

service. It is noted that, for several

of the years listed, the applicant has

claimed credit for substantially more

than 366 days service,

4. For the reasons stated in the

5 October 1984 opinion of the OTJAG,

C-i1

the formula for computing years of

active service which is described in

that opinion is considered to be the

only proper formula for use in this

case,

5. The applicant had not

completed 18 years of active service

as of 21 May 1984, and there is no

basis for correcting his records to

show that he had in fact completed that

amount of service.

DETERMINATION: Applicant has failed to

submit his application within the time

required, to provide sufficient reasons

for his failure to do so, or to submit

sufficient relevant evidence to

demonstrate the existence of probable

material error or injustice,

C-i2

BOARD VOTE:

[The initials of what appear to

be three different individuals

appear to the left of the

phrase —- DENY APPLICATION]

SIGNED, John W. Matthews |

Executive Secretary

C-13

Appendix C continues with a photocopy

of a Preprinted form which has been

filled out by hand.

The form is numbered DD Form i149 in the

lower left corner.

The title of the form is is:

Application for Correction of

Military or Naval Record Under the

Provisions of Title 10, U.S. Code,

Sec. 1552

Text that follows is presented in

question and answer form, each numbered

sequentially, the question equating to

a number request for information and

the answer equating to the hand-written

answer. Any question which was answere

with either Not Applicable (NA), or

which was left unanswered, has not been

included,

Application for Correction of Military

or Naval Record Under the Provisions

of Title 10, U.S. Code, Sec. 1552

No Number Q: Branch of Service

A: Army

No. ls Q: Name

A: Bawcum, James L,.

C-14

No.

NO.

No.

NO.

No.

10:

Present Rate, Grade

LTC, 05

Service Number

05401696

Social Security Number

464-48-9855

Present Status, if any,

with respect to the Armed

Services

IRR on SADT

Organization at Time of

Alleged Error in Record

RCPAC

I desire to appear before

the Board in Washington,

D.C.

No.

Name and address of

counsel

C-i5

Paul M. Vuksich

540 15th Ave.

San Francisco, CA 94118

I request the following

correction of error or

injustice,

Properly credit me with

all active duty performed

to include continuous

active duty from entry on

active duty in 1958 to

REFRAD in 1973, short

tours of AD served from

1973 to present and all

travel days incident to

those tours.

I believe the record to be

in error or unjust in the

following particulars.

C-16

No.

13:

l4a:

A: The calculation of my

QO:

total AD days is incorrect

and does not include

numerous short tours I

have served since my

REFRAD in 1973. RCPAC has

instructed me to make no

attempt to correct the

record until now.

In support of this ap-

plication I submit as

evidence the following.

I have served on AD for

the times and in the

duties shown at inclosure,

The date of the discovery

of the alleged error or

injustice was

18 Jun. 1984

C-17

Complete address

HQ, 6A, ODCSLOG Presidio

of San Francisco, CA

94129

Date

20 Jun 1984

Signature

(executed by) James L,.

Bawcum

Appendix C continues with a photocopy

of a letter on the letterhead of Paul

Michael Vuksich, Attorney at Law, 540

15th Ave., San Francisco, California

94118. The letter is dated June 2l,

Text is as follows:

The Honorable President of the Board

Army Board for Correction of

| Military Records

Department of the Army

Washington, D.C. 20310

Re: LTC James L. Bawcum, 464-48-9855

Dear Mr, President:

I represent LTC James L. Bawcum in

a matter currently before Judge Marilyn

Hall Patel, United States District

Court for the Northern District of

California. Judge Patel has stayed the

proceedings pending a determination by

the Board of whether or not LTC Bawcum

has 18 years of active federal service.

Attached you will find a completed

DD Form 149 with supplemental docu-

C-19

mentation, This represents all LTC

Bawcum remembers about his active

federal service. Judge Patel has

ordered (by way of stipulation) that

the Board make a good faith effort to

examine records of other agencies such

as RCPAC and Army Finance so that LTC

Bawcum receives full credit for his

service. In that regard, LTC Bawcum

was paid during his service for 120

days of unused leave. Since he was

paid for the days, are these days

counted as days served?

Once you have arrived at LTC

Bawcum's total days of service, I

request that you indicate how you

arrive at years of active federal

service. I would also like to know

your statutory or other authority for

making the computation as you do.

I thank the Board and you for your

kind attention,

Sincerely,

(executed)

Paul M. Vuksich

PMV/st

enc: as

C-21

Appendix C continues with a photocopy

of a handwritten form. The form is

comprisec of six vertical columns of

information,

The table is hereinbelow presented so

that the left half of the table is on

this page, and the right half of the

table is on the page immediately facing

this page.

This method of presenting tables will

be used through the rest of this

Appendix C, as well as in later Appendice

Text is as follows:

This page has been intentionally left

blank.

RYE

59/05/22

AD Description

Continuous

Active

Duty

Upon REFRAD in Sep 73, I was

paid for 60 days leave.

Phase II, C&GSC (Reno, NV)

Exercise Grand Slam (Ft.

Lewis, WA)

Ariz State Univ.

Detachment

Ft. Lewis, WA (activated

HAWK Br)

Camp Shelby, MS

Exercise Brave Shield

(Ft. Lewis, WA)

Exercise Brim Frost (Ft.

Wainwright, AK)

HO, First Army, ODCSLOG

HO, FORSCOM, ODCSLOG

Phase VI, C&GSC (Dover,

HQ, DA, ODCSLOG

HQ, Sixth Army, ODCSLOG

HO, Sixth Army, ODCSLOG

ROTC

Del)

Upon REFRAD from AD tours since 1979,

have been paid for an accumulation of

60 additional days of leave,

C-24

a ~

;

AD Days Tvl Days Total Ad Tvl Mod

246 N/A N/A N/A

366 N/A N/A N/A

365 N/A N/A N/A

366 N/A N/A N/A

365 N/A N/A N/A

366 N/A N/A N/A

365 N/A N/A N/A

366 N/A N/A N/A

365 N/A N/A N/A

110 N/A N/A N/A

12 1 13 Come’ i.

12 l i3 Comc'l.

25 4 29 POV

31 10 41 POV

38 l 39 Come* i.

12 1 13 Come’l,.

18 3 21 Comc'l,

60 13 73 POV

356 9 365 POV

12 5 17 POV

120 4 124 POV

215 LS 230

140 iz 152 POV

Air

Appendix C continues with a photocopy

of document on letterhead of the

Department of the Army.

Text is as follows:

Department of the Army

Office of the Adjutant General

U.S. Army Reserve Components Personnel

and Administration Center

St. Louis, MO 63132

AGUZ-OP-0161-J

ORDERS T-02~-304248A02

13 SEP 83

James L. Bawcum

5436 Lighthouse Lane

Burke, VA 22015

OP-0161

464 48 9855 LTC AD 14C5L

USAR CON GP RE

The following order is amended as

indicated.

So Much of:

T-02-304248

RCPAC

22 FEB 83

is Amended by:

T-02-304248A01

Is Further Amended

Pertaining to:

James L. Bawcum

464 48 9855 LTC 14C5L

5436 Lighthouse Lane

Burke, VA 22015

As Reads:

Reporting Date: Between 0730 &

0800 HRS 25 Aug 83 Period: 205

days

Acct: Clas: 2132070 11-7300 P3281.400G4

(GXGH) (1199-$5249)

(1250-$300) (1210-)

(2572-) (2199-$725)

(2119-) (2200) S23185

Acct: Clas: 2142070 11-7400 P3281.400G6

(GXGH) (1199-$23209)

(1250-$1327) (1210-)

C-27

(2572-) (2199-$725)

(2119-) (2200) S23185

How Changed: _— Reporting Date:

Between 0730 & 0800 Hrs

28 Feb 83 Period: 215

days

Acct: Clas: 2132070 11-7300 P3281.400G4

(GXGH) (1199-$29860)

(1250-$1708) (1210-)

wih Wiad abl alts inl attire

(2572-) (2199-$725)

(2119-) (2200) S23185

For Army Use: Auth: SADT-10 USC

672(D)683(A) (1)

VOCDR 25 FEB 83

PIPL: 6A-023

FORMAT: 700

TAG, RCPAC

OFFICIAL

DISTRIBUTION: 1A

DAAR~COB

C-28

HQ 6th USA PRESIDIO OF SF CA 94149

(unsigned)

RONALD W. ZELTMAN

BRIGADIER GENERAL, USA

COMMANDING

Appendix C continues with a second

photocopy of document on letterhead of

the Department of the Army.

Text is as follows:

[illegible]

U.S. Army Reserve Components Personnel

and Administration Center

St. Louis, MO 63132

AGUZ-OP-0161-J

ORDERS T-02-304248A01

27 AUG 83

James L. Bawcum

5436 Lighthouse Lane

Burke, VA 22015

OP-0161

464 48 9855 LTC AD 14C5L

USAR CON GP RE

The following order is amended as

indicated. |

So Much of:

T-02-304248

RCPAC

22 FEB 83

C-30

Pertaining to:

James L. Bawcum

464 48 9855 LTC 14C5L

5436 Lighthouse Lane

Burke, VA 22015

As Reads:

Reporting Date: Between 0730 &

0800 HRS 25 Aug 83 Period: 178

days

Acct: Clas: 2132070 11-7300 P3281.400G4

(GXGH) (1199-$24700)

(1250-$1413) (1210-)

(2572-) (2199-$814)

(2119-) (2200) S$23185

How Changed: IFATR: Reporting Date:

Between 0730 & 0800 Hrs

24 Aug 83 Period: 205

days

Acct: Clas: 2132070 11-7300 P3281.400G4

(GXGH) (1199-$5249)

Ce3i

(1250-$300) (1210-)

(2572-) (2199-$725)

(2119-) (2200) S23185

Acct: Clas: 2142070 11-7400 P3281.400G6

(GXGH) (1199-$23209) | 3

(1250-$1327) (1210-)

(2572-) (2199-) (2119-)

(2209) S23185

For Army Use: Auth: SADT-10 USC

672(D)683(A) (1)

VOCDR 25 FEB 83

PIPL: 6A-023

FORMAT: 700

TAG, RCPAC

OFFICIAL

DISTRIBUTION: iA

DAAR-COB

HQ 6th USA PRESIDIO OF SF CA 94149

(unsigned)

C-32

RONALD W. ZELTMAN

BRIGADIER GENERAL, USA

COMMANDING

Appendix C continues with a third

photocopy of document on letterhead of

the Department of the Army. This

Original photocopy is two, rather than

one page long as the preceding two

photocopy documents have been. The top

1/3 of the first page of this document

is covered with largely undeceiferable

writings; the balance of the document

is substantially in the form of the

immediately two preceding photocopy

Original documents,

Text is as follows:

[illegible]

Department of the Army

Office of the Adjutant General

U.S. Army Reserve Components Personnel

and Administration Center

St. Louis, MO 63132

AGUZ-OP-0161-D

ORDERS T-07-024712A01

06 FEB 82

James L. Bawcum

11529 Hannnett Ave

Albuquerque, NM 87112

464 48 9855 LTC 14C5L AD

USAR CON GP MD

The following order is amended as

indicated,

C-34

So Much of:

T-07-024712

RCPAC

29 JUL 81

Pertaining to:

James L. Bawcum

464 48 9855 LTC 14C5L

11529 Hannett Ave

Albuquerque, NM 87112

As Reads:

Period: 178 days

Acct: Clas: 2112070 11-7100 P3281.000G4

(GXAJ) (1199-$8942)

(1250-$505) (1210-)

(2572-) (2199-$400)

(2119-) (2200) S23185

Acct: Clas: 2122070 11-7200 P3281.000G4

(GXAJ) (1199-$1494?)

(1250-$845) (1210-)

(2572-) (2199-) (2119-)

(2200) $23185

How Changed: IATR: Period: 356

days

Acct: Clas: 2122070 11-7100 P3281.000G61

(GXAJ) (1199-$7900)

(1250-$505) (1210-)

(2572-) (2199-$487)

(2119-) (2200) $23185

[illegible]

Unsigned by C.F. Briggs, Brigadier

General, USA, Commanding

‘2

Appendix C continues with a photocopy

of a Department of the Army form,

numbered AGUZ Form 249, which is dated

22 Aug 82, whose subject is Chronological

Statement of Retirement Points,

The left portion of the form is presented

on the following page, and the right

portion of the form is presented on the

page next following.

Text in pertinent parts is as follows:

AGUZ-RAS-A

BAWCUM JAMES L

4846 Candlewood Lane

Stone Mountain GA 30088

Furnished in Lieu of DA Form 1383

Reason for Issuance: Annual Statement

Social Security Number: 464489855

Date of Birth: 360624

Current Grade: LTC

Inactive

Beginning Date Ending Date Duty

Yr MO Day Yr Mo Day Points

—) oe ae 59 OS 22

59 O05. 23 60 05 22

oo @F °23 6l OFS <2

ei. -03. 23 62 05 22

62 905 £3 63 83 22

63 05 23 64 05 22

64 05 23 65 05 22

63. 03 22 66 05 22

66 05 23 67 O05 22

67 Of 23 68 05 22

68 05 23 69 O05 22

oF G3 23 Oo. @3.-. 22

70 O5S 23 te ‘Oe. Be

71 6 6OShC RS ta -@a 22

ta O88 2s 43683. COA

73 © OG.23 74 23 22

7? @2 ea fa. 8 2a

to Oe. de 7 ear

Te @ 22 74: Oe cee 20

7% 6 @3. 22 te. @38 22 14

i, nr 80 05 22

80 05 23 Gl ..05 22

81 05 23 82 05 22

Member-

ship

Points

Active

Duty

Points

246

366

365

366

365

366

365

366

365

110

Total

Total Service

(Qualifying and

non-Qualifying)

for Longevity

Pay Purposes

Qualifying

for

Retirement

Yr Mo

O01

060

Day

Total

Points

Credit-

able

0261

0366

0365

0366

0365

0366

0365

0366

0365

0125

0015

0035

0029

0027

0053

0015

5689

Appendix C continues with a photocopy

of a Disposition Form, which is numbered

DA Form 2496. The form is dated 31 Jui

84, The form is filled out both in

typing and in handwritting. No dif-

ferentiation is made herein,

Text in pertinent parts is as follows:

REFERENCE OR OFFICE SYMBOL:

DARC~-PSA-A

Bawcum, James L.

464 48 9855

SUBJECT:

Application for Correction of

Military Records

TO: Director, PPC

Attn:

FROM: Director, PSD

DATE: 31 Jul 84

Mrs. Smith/37426

Comment 1

In response to the attached

application, request that you furnish

comment, recommendation, opinion and/or

C-40

record facts, as appropriate, for the

guidance of the Board.

Executed by: Stephen C. Engelking, LTC,

GS Director, Personnel

Services

2 IMCL s

ka Live Case

he Records

(The bottom portion of the Form is not

completed.

Appendix C continues with a photocopy

of a Memo, Dated 20 Aug 84,

Text is as follows:

DARC-PPC Bawcum, James L.

464-48-9855 (31 Jul 84)

SUBJECT: Application for Correction

of Military Records

To: Personnel Services Dir.

Attn: Corrections Br.

Special Actions Div., PSD

FROM: Chief, Policy Division

DATE: 20 Aug 1984

Mrs. Lee/cs/7371

Comment <z

The following represents our

findings as it relates to the applica-

tion:

l. Creditable service for the

purpose of determining eligibility or

whether a member meets the requirements

for retirement varies with each retire-

ment type. AR 135-180 governs

C-42

computation of service under the

provisions of Title 10 USC, section

1331. AR 635-100 governs computation

of service for retirement under the

provisions of Title 10 USC, sections

3911 and 1405. Computation is based

upon the formula prescribed by the

specific law under which the member is

retired.

2. The statement of active

federal service for LTC Bawcum has been

recomputed using the military pay

vouchers obtained from the US Army

Finance Center. This computation

allows active duty credit for all

travel time shown on the pay vouchers,

3e In computing active federal

time when action duty for training is

more than 30 days, the provisions of

DOD Manual 1340.12-M (Military Retired

C-43

Pay Manual) paragraph 10116, and DOD

Military Pay and Allowances Entitlements

Manual, paragraph 10108, apply to

change the ending date to 30 if it is

the last day of the month and other

than 30.

4. Based on the attached state-

ment of active federal service, LTC

Bawcum did not have 18 years of active

Guty on 21 May 1984 and is not eligible

for the lock-in provisions of Title 10

USC, section 1163.

Signed By: Paul E. Golden

Chief, Policy and Procedures

Office

l1 Incl

C-44

Appendix C continues with a photocopy

of DARC Form 2610, dated 20 Aug 84,

which was the enclosure to Comment 2.

The photocopy is of a table, with 12

vertical columns. The top portion

notes that the table is a "Computation

of Active Federal Service", is dated 20

Aug 84, is for James L. Bawcum, and

gives his social security number, then

is blank halfway down the page to a

section titled "Active Federal Service",

If there was nothing in the column, it

is not included,

Text is as follows:

Enlisted

Warrant From

*Line # Commissioned Year Month Day

0 AGUZ Fm 249

1 DA Fm 2139 78 07 10

2 DA Fm 2139 78 08 13

3 DA Fm 2139 78 09 04

4 DA Fm 67-7 78 10 08

5 DA Fm 67-7 79 08 06

6 DA Fm 2139 80 05 23

7 DA Fm 2139 81 01 23

8 DA Fm 2139 81 05 27

9 DA Fm 2139 82 02 O01

10 DA Fm 2139 82 07 25

lL 214/DA 2139 82 10 O01

12 214/DA 2139-1> 83 02 28

13 Orders 84 01 03

* Numbering as agreed to by petitioner

and respondent for clarity in the summary

judge motion in district court and

before the court of appeals.

TO Total

Year Month Day Years Months Days

14 ll 26

78 07 21 12

78 08 25 13

78 09 30 27

78 ll 09 1 02

79 08 24 19

80 06 29 1 07

81 02 10 19

82 O01 20 7 24

82 07 18 5 18

82 08 06 13

83 01 31 + 00

83 10 09 7 12

84 05 21 4 19

Total Active

Service - This

Page 17 ll 01

Total Active

Federal Service 17 ll 01

C-47

Appendix C continues with a photocopy

of a memo, dated 5 Oct 1984,

Text is as follows:

DAJA-AL 1984/2833 (31 July 1984)

SUBJECT: Application for Correction of

Military Records

TO: OSA, ABCMR

FROM: DAJA-ALP

DATE : 5 Oct 1984

MAJ Holland/jc/44586

Comment 4

l. It is the opinion of this

office that the formula stated in 10

U.S.C. 1333 (division by 360) does not

apply to the determination of how many

"years of service" the applicant has

achieved for purposes of 10 U.S.C.

3911. The latter statute requires that

years of service be computed under 10

U.S.C. 3926. 10 U.S.C. 3926 specifies

C-48

that years of service are computed by

adding all active service as an Army

member (and certain other periods not

pertinent to this applicant). In the

applicant's Further Memorandum for

Preliminary Injunction, dated 18 June

1984 (included in the file you furnished),

the applicant relies on 10 U.S.C. 3991

to argue that 10 U.S.C. 1333's 360-day

formula applies. However, 10 U.S.C.

3991 clearly governs only the amount of

retired pay for a person who is other-

wise entitled to such pay. In other

words, 10 U.S.C. 3991 does not answer

the question of whether a person has

sufficient service to retire, but

applies by its own terms if and only if

retirement eligibility has already been

established under other pertinent laws

(see also 10 U.S.C. 3929). Likewise,

C-49

10 U.S.C. 1333 applies by its own terms

only for the purpose of computing

retired pay under chapter 67 of title

10, U.S. Code; 10 U.S.C. 3911 and 3926

are part of a different chapter (chap.

367) of title 10. Further, it is

Significant that in 10 U.S.C. 1405,

which refers to 10 U.S.C. 1333 (the

provision with the division by 360

rule), there is a separate enumeration

of “years of active service" (compare

10 U.S.C. 1405(1) and (3)). It is

logical to conclude that Congress

envisioned that “years of active

service" (see 10 U.S.C. 1405(1)) would

be calculated by a method distinct

from, and not duplicative of, the

calculation of years of service in 10

U.S.C. 1405(3).

(in his letter of 21 June 1984, at Incl.

1), questions whether days of “unused

leave" for which the applicant was paid

are to be counted as “days served", In

Our opinion, the fact that the applicant

may have been paid for unused accrued

leave does not add any days to the

years of service calculated under 10

U.S.C. 3926 (see 37 U.S.C. 50l1(c)).

3 In Our opinion, the allowable

travel time permitted by the regulations

in effect when the active duty was

performed is properly included in the

period of active duty. See, for

example, paragraphs 1-13 and 1-15, AR

135-200, 1 January 1983, and paragraph

4-2, AR 135-210, 1 July 1982.

4, Further, it 1S our opinion

that an officer's years of service

C-5i

under 10 U.S.C. 3926(a)(1), i.e., the

calculation which is pertinent to 10

U.S.C. 3911 in the applicant's case,

should be computed by the method

described in our previous opinion

DAJA-AL 1980/1186, 22 February 1980, to

Cdr, MILPERCEN (copy attached as Incl

3). That method first credits complete

calendar years, It then counts all

days of active service during calendar

years where the member was not in

active service for the full year and

converts those days to equivalent years

and remaining days, depending on

whether the period was during a leap

year or regular year. The sum of the

remaining days is then divided by the

average length of a year (365.25 days)

to determine equivalent years. We note

that our 1980 opinion was consistent

C-32

with an earlier opinion, JAGA 1956/6469,

4 September 1956, construing 10 U.S.C.

3926. The general principle underlying

the 1980 opinion (that the fictional 30

day/month or 360 day/year rule should

be used only where authorized by

statute) is also consistent with our

prior opinions on matters other than 10

U.S.C. 3911 retirement eligibility

(JAGA 1960/5250, 18 January i960, and

JAGA 1957/4185, 10 June 1957).

5 In our opinion, paragraph

10116, DOD Retired Pay Manual, and

paragraph 10108, DOD Pay and Allowance

Entitlements Manual, cited in paragraph

3 of Comment 2 from RCPAC, do not govern

the determination of years of service

for retirement eligibility under 10

U.S.C. 3911, and shculd not be used for

that purpose. By their terms, those

C-53

directives provide the manner of

computing total creditable service for

basic pay, not for retirement eligibility.

6. This office assumes that the

beginning and ending dates for the

short periods of active Federal service

between 1978 and 1984 shown on the DARC

Form 2610 prepared 20 August 1984 by

RCPAC (unnumbered Incl to Comment 2) are

correct and that they properly include

allowable travel time (see paragraph 2,

Comment 2). When the short periods shown

on the DARC Form 2610 and the extended

period of active duty (from 19 September

1959 to 9 September 1973) shown

on the DD Form 214 included in the

applicant's OMPF are converted to

"years of service" by the computation

method discussed in paragraph 4, above,

it is our opinion that the applicant

C-54

had completed 17 years and 329 days

(i.e., less than 18 years) of service

as of 21 May 1984, for purposes of 10

U.S.C. 3911.

FOR THE JUDGE ADVOCATE GENERAL:

(signed)

Robert F. Holland

Major, JAGC

Military Personnel Law Branch

Administrative Law Division

3 Incl

added 1 incl

3. Copy, DAJA-AL 1980/1186

Appendix C continues with a photocopy

of a memo, dated 22 Feb 1980.

Text is as follows:

DAJA-AL 1980/1186 (26 December 1979)

SUBJECT: Service Computation

TO: DAPC-MSS-R

Hoffman II

FROM: DAJA-ALP

Pentagon

DATE: 22 Feb 1980

CPT England/76000

l. In response to your request

for guidance as to service computations

for retirement purposes, it is the

opinion of this office that the compu-

tation of active Federal service under

10 U.S.C. 3926, for the purpose of

determining retirement eligibility

under 10 U.S.C. 3911, should be based

on the actual number of years and days

of active Federal service performed,

C-56

not on a formula utilizing the ficti-

tious thirty-day month and 360-day

year.

2. The actual years of service

of a member may be computed as follows:

a. Count the number of

years in which member was on active

duty for the entire calendar year.

Db. Count the number of

actual days served during non-leap

years in which member was not on active

duty for the entire year. If this

total exceed 365, divide it by 365 to

determine the nearest whole number

quotient with remainder expressed,

Cs Count the number of

actual days served during leap

years in which member was not on active

duty for the entire year. If this

total exceed 366, divide it by 366 to

C-37

determine the nearest whole number

quotient with remainder expressed.

d. Add the remainders

from the steps b and c above and divide

the sum by 365.25. If the quotient is

at least one, member may be given credit

for an additional year. An actual-day

computation worksheet is attached as

Incl ll. [Censored] service computa-

tion, as of 20 February 1980, is

attached as Incl 12.

36 This opinion is limited to

the determination of eligibility for

retirement and does not purport to

change the use cf fictional 30-day

month/360-day year where its use is

expressly authorized by statute, e.g.,

for the purposes of calculating pay.

FOR THE JUDGE ADVOCATE GENERAL

(Signed By): Jack F. Lane, Jr.

Lieutenant Colonel, JAGC

Chief, Personal Law Branch

Administrative Law Division

12 Incl

Added 3 Incl

10. DACA-FP Memo (28 Jan 80)

11. Computation Worksheet

12. Computation Worksheet -

MAJ [Censored]

Appendix C continues with a photocopy

of a mimeographed Computation Worksheet.

The worksheet is designed so that there

are lines to the right of each question/

statement where one would presumably

write down results of computations,

The blanks are omitted below, with only

the writings included.

Text is as follows:

1. Number of complete years of

service,

2 Number of actual days during

incomplete non-leap years of service;

Divide by 365 (nearest whole

no. )

Remaining days

3.* Number of actual days during

incomplete leap years of service;

Divide by 366 (nearest whole

no.)

Remaining days

C-60

4.* Remaining days from 2 plus

remaining days from 3;

Divide by 365.25 (nearest

whole no.)

Se Total complete years of

service,

* If none of the incomplete years of

service fall in a leap year, delete

steps 3 and 4. ;

Appendix D is an Order, Court of

Appeals, which was filed Dec. 6, 1985.

Text is as follows:

In the United States Court of Appeals

For the Ninth Circuit

James L. Bawcum, Plaintiff-Appellant,

Ve.

John O. Marsh, Jr., Secretary of the

Army, Defendant-Appellee,

No. 85-1936

D.C. # CV 84-3136-MHP

(Northern District of California)

ORDER

Before: WALLACE, HUG, and SCHROEDER,

Circuit Judges,

The panel, as constituted above,

has voted unanimously to deny the

petition for rehearing.

Appendix E is a photocopy of a letter,

undated, on letterhead of the Department

of the Army, Office of the Adjutant

General, U.S. Army reserve Components

Personnel and Administration Center,

St. Louis, MO 63132.

Text is as follows:

Reply to Attention of: AGUZ-RAS-SC

SUBJECT: Retirement Points Accounting

System

Dear Reservist:

In April 1981, the Commanding

General, RCPAC, chartered a study group

to look in depth at the Retirement

Points Accounting System and subsystems

in the Center and to recommend short

and long range solutions to the problems

affecting the system. The study group

was composed of experts from every

element of the Center connected with

retirement points accounting. The

—

group's mission was to provide a more

timely and accurate accounting of

RCPAC's customers‘ (IRR and TPU members)

retirement points.

Several procedural changes are

now in force to improve posting of

active duty for training and extension

course completion points. Both areas

have contributed to inaccurate annual

points statements (AGUZ Form 115).

The study group also identified

issuance of statement of service

annually as an area that would produce

immediate benefits to you, and reduce

the problems involved in issuing the

20-year letter and certification for

pay at age 60. While we fully recognize

that your historical data may be

incomplete or incorrect initially, we

solicite your support in reviewing your

E-2

new annual statement (AGUZ Form 249--

Chronological Statement of Retirement

Points) in two ways as follows:

PART ONE - Current Year Data,

Please review current year points data

as you have in the past years with the

use Of AGUZ Form 115, challenging any

incorrect or incomplete area(s) by

providing this Center, ATTN: AGUZ-RAS-A,

with documentary evidence to support

your claim(s). An automated corrections

feature of the new Retirement Points

Accounting System is now on line and

should greatly reduce the time required

in responding to your request for

correction.

PART TWO - Historical Data.

Please review your historical section

for completeness. If you find period(s)

of prior service missing or inaccurate,

E-3

you should, using the PMO Guide on the

reverse side of this letter, collect

the necessary documents to support

correction of the missing period(s) and

retain this informaticn in your personal

file. DO NOT ATTEMPT to correct the

historical section until you receive

the second annual statement under this

system, Allow us time to exercise the

new system and to reduce the backlog in

this area.

Your patience and continued

support are essential in making the new

Retirement Points Accounting System

responsive to your needs,

(Signed by): Donald R. Woolf

LTC, GS

Coordinator, Retirement

Points Accounting

System

E-4

Appendix F is a photocopy of a letter,

dated May 17, 1984, on letterhead of

the Department of the Army, Office of

the Adjutant General, U.S. Army reserve

Components Personnel and Administration

Center, St. Louis, MO 63132.

Text is as follows:

Reply to Attention of: DARC

Mr. Paul Michael Vuksich

Attorney at Law

540 Fifteenth Avenue

San Francisco, CA 94118

Dear Mr. Vuksich:

Thank you for your letter of April

27, 1984, and your letter to Secretary

of the Army Marsh, dated May 8, 1984,

concerning Lieutenant Colonel James L.

Bawcum, 464-48-9855. This letter

responds to both inquiries.

A complete, thorough analysis of

all available records, including the

documentation provided by you, concerning

the active federal service of Colonel

Bawcum, has been completed. As a

result of this comprehensive review, he

has been crecited with 17 years, 7

months, and 27 days of active federal

service,

I am enclosing a form used at this

Center which indicates the document

used to compute active federal service,

If Colonel Bawcum has documentation to

substantiate additional service, that

information should be provided for

evaluation. Colonel Bawcum is serving

on a Special Active Duty for Training

Tour. These tours are of specific

duration and the orders furnished

individuals entering on such tours are

self terminating orders containing a

specific beginning date and a specified

number of days. Their purpose is to

provide reserve component expertise, as

P=-2

needed, to Department of the Army for

specific projects. Such tours are not

intended to provide repetative active

duty for retirement purposes, The

cceptance of the current 140-day

Special Active Duty for Training Tour

constituted an agreement between

Colonel Bawcum and the Department of

the Army that such tour was of short

duration, with a specific termination

date, and would not be further extended

except by approval of the Department of

the Army. The current Special Active

Duty for Training Tour being served by

Colonel Bawcum is for 140 days, as

specified in orders T-12-337589 issued

by this Center on December 23, 1983.

Since this tour has not been extended

by the Department of the Army, Colonel

Bawcum must be relieved from active

duty on May 21, 1984.

Sincerely,

(Signed By): RONALD W. ZELTMAN

Brigadier General, USA

Commanding

Appendix F continues with a photocopy

of DARC Form 2610, dated 16 May 84,

The photocopy is of a table, with 12

vertical columns. The top portion

notes that the table is a “Computation

of Active Federal Service", is dated 16

May 84, is for James L. Bawcum, and

gives his social security number, then

is blank halfway down the page to a

section titled "Active Federal Service",

If there was nothing in the column, it

is not included.

Text is as follows:

Enlisted

Warrant

Commissioned

AGUZ Fm 249

DA Fm 67-7

DA Fm 67-8

DD Fm 214

Orders

From

Year Month Day

78 Aug 14

78 Sep 5

78 Oct 10

79 Aug 12

80 May 24

81 Jan 24

81 May 27

81 Jul 27

82 Oct 1

83 Feb 28

B4 Jan 3

TO Total

Year Month Day Years Months Days

14 1l 26

78 Aug 25 ha

78 Sep 29 25

78 Nov 9 31

79 Aug 24 12

80 Jun 28 36

81 Feb 10 18

81 Jul 25 1 29

82 Jun 14 10 24

83 Jan 28 3 28

83 Sep 2 6 6

84 May 21 4 20

Total Active

Service - This

Page 17 7 27

Appendix G is a Stipulation, District

Court, Received Jun 19, 1984, Filed

Jun 21, 1984.

Text is as follows:

United States District Court

Northern District of California

James L. Bawcum, Plaintiff,

John O. Marsh, Jr., Secretary of the

Army, Defendant.

No. C-84-3136-MHP

STIPULATION

It is hereby stipulated between

the parties to this action, through

their undersigned attorneys, that the

hearing on the Preliminary Injunction

is stayed pending a decision by the

Army Board for the Correction of

Military Records (ABCMR) regarding

plaintiff's active federal service.

This stipulation is contingent

upon the defendant's continuing plaintiff

in his present status up to and including

July 13, 1984 and the plaintiff to

continue his tour of duty under the

terms of the initial Order of the

Court.

IT IS FURTHER STIPULATED that the

defendant (ABCMR) shall endeavor to

issue its decision on or before July

13, 1984 and if it does not, then,

defendant agrees to continue plaintiff's

active duty until such time as a

decision is rendered by ABCMR,.

Defendant agrees to make a thorough

and good faith effort to determine

plaintiff's active duty service.

Dated: 6/18/84

(Signed by): Gary A. Hall

Assistant U.S. Attorney

Civil Division

Paul Michael Vuksich

Attorney for Plaintiff

(Approved by): U.S. District Judge

Handwritten note added below Mr,

Vuksich's signature. Text is as

follows:

If no further hearing date or

other date is set by the parties

before August 27, 1984, that date

is set down for a further status

conference at which time the

parties will appear at the hour of

9:30 a.m,

Appendix H is a Declaration cf Lieutenant

Colcnel Richard Charles Jelen in support

of the Respondent's Memorandum for

Summary Judgment in the district court,

filed March 26, 1985.

Text, from pertinent portion, is as follows:

United States District Court

Northern District of California

James L. Bawcum, Plaintiff,

John O. Marsh, Jr., Secretary of the

Army, Defendant.

No. C-84-3136MHP

DECLARATION OF LIEUTENANT COLONEL

RICHARD CHARLES JELEN (Beginning on

page 1l of the original, Paragraph

numbers correspond with line numbers

found on DARC FORM 2610, dated 20 August

84, App. C 46/47.)

(Line) 8-9 Lieutenant Colonel Bawcum

claims he is «atitled to an extra 1] days

based on being extended on active duty

during January 20, 1982 to February i, 1982.

We have no record (i.e. military orders)

to show such an extension was properly

H-1

authorized and Bawcum has failed to sub-

mit any. Lieutenant Colonel Bawcum points,

however, to block 11, Remarks, on his

DA Form 2139 (Tab 5) for that period,

which states, "SM due pay for period

21-30 January 1982. Due to extension

of tour of duty." In my opinion if

Lieutenant Colonel Bawcum was properly

paid for this period, he is entitled to

an extra 1l days. Lieutenant Colonel

Bawcum also claims an extra 11 days for

Permanent Change of Station (PCS)

travel. He has produced a copy of

orders showing he was assigned to Fort

Meade, Maryland, for 60 days, Plaintiff's

Exhibit 14. If he had been extended

for two 179 day tours, with no break in

service, as he claims, he would not

have been entitled to additional travel

time to bring his privately owned

H-2

vehicle to Fort Meade. Moreover, since

Bawcum apparently remained at Stone

Mountain, Georgia, after completing his

tour at Fort McPherson, Georgia in July

1982 (See Tab 11, which shows his

October 1982 orders giving his home

address as Stone Mountain, Georgia,

which is located near Fort McPherson)

he would not be entitled to travel time

for return to Albuquerque, New Mexico,

since he never used that travel time,

This is reconfirmed by Bawcum's failure

to be paid for that travel. Thus, in

my opinion Lieutenant Colonel Bawcum is

not entitled to the extra 11 days he

claims for Permanent Change of Station

(PCS) travel.

(Line) 10. Lieutenant Colonel

Bawcum does not dispute the computation

of 13 days.

(Line) 11. The computation (Tab 1)

shows 4 months service for active duty

from October 1, 1982, to January 31, 1983.

Lieutenant Colonel Bawcum claims an

additional 6 days for travel from Stone

novetebic Georgia, to Washington, D.C.,

and return, His military orders, Tab

12, show his address and home of record

as Stone Mountain, Georgia, and do not

authorize use of a private automobile

to get to Washington, D.C. Thus he was

entitled to allowance for travel only

from Stone Mountain, Georgia, one

travel day each way, which could have

fallen on duty days. Altogether,

Bawcum is entitled to the 120 days he

served (per his orders, Tab 12, and his

last Military Pay Voucher, DA Form

2139, for this period, Tab 20, which

shows he was discharged on January 28,

H-4

1983). He also was entitled to at

most, one additional travel day each

way, which would give Bawcum between

120 days to 122 days depending on

actual travel time used and schedules

of commercial airlines. Any payment

made to Bawcum beyond that period would

be unauthorized under his orders since

he was not authorized travel by privately

owned vehicle.

(Line) 12. The computation (Tab 1)

shows 7 months 12 days of active duty for

the period February 28, 1983, to October 9,

1983. (Using the ABCMR methodology

this is 224 days.) Bawcum claims an

extra 9 days for travel from Burke,

Virginia, to the Presidio. However,

his home of record when he received the

military orders for this duty was Stone

Mountain,Georgia, TAb 17, and he was

H-5

only authorized travel from there, not

from Burke, Virginia. Lieutenant

Colonel Bawcum's orders do authorize

travel by private automobile, Tab 17,

and under the DOD Military Pay and

Allowances Entitlements Manual, Tab 19,

he was authorized one travel day for

each 300 miles allowable travel or

fraction thereof over 150 miles. See

Table 1-2-4, Tab 19. The officially

allowable distance from Atlanta,

Georgia (located close to Stone Mountain)

to the Presidio, San Francisco, contained

in Army Regulation 55-60, Tab 20, is

2476 miles, which would give Bawcum 8

travel days to the Presidio. Upon

leaving the Presidio in October 1983,

Bawcum was credited with 9 days travel

time to Burke, Virginia. See Plaintiff's

Exhibit 17, page 91 (Block 11 of DA

H-6

Form 2139, Military Pay Voucher).

However, on March 7, 1983, he stated

his home of record to be Waco, Texas.

Tab 13. Thus his allowable travel

properly should have been to Waco,

Texas, and not to Burke, Virginia.

This would give an allowable travel

time of 6 days, based on the official

distance of 1777 miles, Tab 20, and

Table 1-2-4, Tab 19, for a total of

229 days.

(Line) 13. Lieutenant Colonel Bawcum

claims he is entitled to travel time

home at the end of his current special

active duty tour. His home of record

is Waco, Texas, Tab 13, and his orders,

Tab 16, authorize travel by private

auto, Allowable travel time to and

from the Presidio to Waco would [be] 6

days, based on the official distance of

H-7

1777 miles, Tab 20, and Table 1-2-4,

Tab 19, for a totai of 152 days under

the ABCMR methodology.

H. Based on the foregoing

analysis in paragraphs F and G, Lieutenant

Colonel Bawcum's total active federal

service would be 14 years 11 months 26

days plus:

l. 13 days

2. 14 days

3. 27 days

4. 31 days

5. 12 days

6. 38 days

Te 19 days

8-9. 418 daysl/

10. 13 days

ll. 122 days2/

12. 229 days

13. 152 days

This makes a total of 14 years 1l

months 1114 days.

I. The proper way to convert the

total figure arrived at in paragraph H

to years is to use the methodology

described in the ABCMR opinion at Tab

15, which accounts for normal years

l/ This figure includes 11 days

for which I am assuming Lieutenant

Colonel Bawcum was properly extended on

active duty. No orders in his records

indicate this, and Lieutenant Colonel

Bawcum produced no records to the

Department of the Army or the ABCMR to

substantiate this point. If my assump-

tion is incorrect, Lieutenant Colonel

Bawcum would be entitled to 1l days

less credit.

2/ This figure includes 2 travel

days that are not presently verifiable,

H-9

having 365 days and leap years having

366 days. Under this methodology, one

first takes the 1114 days and breaks

them down into days during leap years

and days during nonleap years. Days

during leap years (1980 and 1984, Tab

1, red numbers 6 and 13) are 190; days

during non leap years (the remaining

ones) are 924, The non leap year days

are divided by 365 to yield 2 years

with a remaining 194 days. The 196

leap year days are less than 366, so

they are not divided but rather added

to the 194 nonleap year days to yield

384 iays. These 384 days are divided

by 365.25 to yield 1 year 19 days.

This gives Lieutenant Colonel Bawcum a

total of 17 yers 11 months and 19 days

creditable service. [One reaches the

exact...

H-10

Executed under penalty of perjury

on 19 March 1985 at Arlington, Virginia.

(Signed by): Richard Charles Jelen

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.