# Petition for Writ of Certiorari — Bawcum v. Marsh > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1482%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1986 - **Citation:** 475 U.S. 1086 ## Text ad No. on" i= —— lips. nena se IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1986 JAMES L. BAWCUM, PETITIONER Ve 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 od 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 Ve 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." 3. 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 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 67-7 DA Fm 67-7 DA Fm 67-7 DA Fm 67-7 DA Fm 67-8 DA Fm 67-8 DA Fm 67-8 DD Fm 214 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, Ve 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, Ve 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1482%3A1. Public record. Not legal advice.