Military Law

Have Military Law Questions? Ask a Military Lawyer.

Ask a Lawyer,
Get an Answer ASAP!

Military Law
This answer was rated:

Hi,I am trying to find out if (most of) the the time spent

Hi, I am trying to...

Hi, I am trying to find out if (most of) the the time spent while I was attending the Naval Academy counts towards my accumulated Active Duty time, in my particular situation. In general, I know that Academy time does not count. However, I was enlisted before being appointed to the Academy. I had nearly four years of obligated service remaining at the time of my entry to the Academy. I have two DD-214s for the following periods: one from the beginning of my enlistment to the time of entry into the Academy; and one from the time of entry into the Academy to the end of my obligated service (about 5 months prior to graduation). There is a note on the first DD214 which states that no discharge certifcate was to be issued because I would be serving active duty in a "dual status" (meaning that if I left the academy for any reason - I would return to being an E5 in the enlisted Navy). The second DD214 (from the time of entry to 5 months prior to graduation) states the reason for separation as "fullfillment of service obligation" and notes that discharge papers were given. This is important in my situation because I am currently a Naval Reservist (SELRES) and, over the years, have qualified for a reserve retirement and have accumulated 18 total years of Active Duty (in fact the Navy will not write me any more orders due to "sanctuary" concerns, ie - they do not want me to qualify for a regular retirement). PERS-9 had not counted my time while at the Academy (most of the time while I was in dual status at the Academy). But I just found these DD-214s in some old files and have submitted them to PERS-9, but have had no response from them. Do you know if the DD214 which shows me as being in a dual status should count as Active Duty toward the 20 years I would need for a regular retirement?


Currently, I have a reserve retirment and will get retirement pay at age 60 (actually a couple years earlier due to active duty time from deplyments and active duty since January 2008).  However if this DD-214 spent in dual status will be honored and counted toward my active duty time - then I will have accumulated nearly 22 years of active duty and will qualify for a regular retirment, and thus, will start receiving retirement pay as soon as I retire from the reserves. 

Show More
Show Less
Ask Your Own Military Law Question
Answered in 2 hours by:
7/13/2013
P. Simmons
P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 35,692
Experience: Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
Verified
Thanks for the chance to help. I am an attorney with over 12 years military law experience.

I am sorry to have to bear bad news.

The answer to your question is no...that time in the academy will not qualify. The answer comes from Title 10 US Code (where all military law comes from).

There are two sections that must be read together to understand the time requirements for active duty retirement. The first comes from the definitions section of Title 10. You an see that here

http://www.law.cornell.edu/uscode/text/10/101

If you scroll down you see

(d) Duty Status.— The following definitions relating to duty status apply in this title:
(1) The term “active duty” means full-time duty in the active military service of the United States. Such term includes full-time training duty, annual training duty, and attendance, while in the active military service, at a school designated as a service school by law or by the Secretary of the military department concerned. Such term does not include full-time National Guard duty.
(2) The term “active duty for a period of more than 30 days” means active duty under a call or order that does not specify a period of 30 days or less.
(3) The term “active service” means service on active duty or full-time National Guard duty.

The second piece to the puzzle is from the section of Title 10 that discusses officer retirement eligibility. You can see that here

http://www.law.cornell.edu/uscode/text/10/6323

Where you see

(a)
(1) An officer of the Navy or the Marine Corps who applies for retirement after completing more than 20 years of active service, of which at least 10 years was service as a commissioned officer, may, in the discretion of the President, be retired on the first day of any month designated by the President.


(b) For the purposes of this section—
(1) an officer’s years of active service are computed by adding all his active service in the armed forces; and
(2) his years of service as a commissioned officer are computed by adding all his active service in the armed forces under permanent or temporary appointments in grades above warrant officer, W–1.



So the time in the Academy will not court toward the active service requirement. Again, I am sorry to have to bear bad news.





Ask Your Own Military Law Question
Customer reply replied 4 years ago
Hi, thanks for your reply. Given the two parts of the code you are citing. It is still not clear to me that the particular time in queston would not count.
For the first part - I did, infact, receive a DD214 for the period that I was concurrently serving as an active duty enlisted member (as described in BUPERSINST 1900.8C paragraph 1a(6)). The DD214, as you know, is a Certificate of Disharge from Active Duty. Most attendees are not eligible to receive a DD214 while at the Academy. However, per the same BUPERSINST, I was eligible to receive the DD214, because I was concurrently serving out my active duty obligation.
The second part - Active Duty time is the accumulation of all active duty served - while both enlisted and as a commisioned officer, while time as a commissioned officer counts only the commisioned time. Again, I dont see anything here precluding the active duty time certified by the DD214 from counting.
I guess I just dont understand how the two sections of the code works against the DD214 in question
I agree the 214 is for active service.

Perhaps I am confused. If you add up all your dd214 time up are you over 20?
Ask Your Own Military Law Question
Customer reply replied 4 years ago
Yes, if the DD 214 that was for concurrent enlisted active duty service is counted. No, if it is not countedActually i have a lot of active duty orders less than 90 days (therefore no DD214s) - but all of these days have been counted in my active duty days by Navy Personel Command. My current total accumulated Active Duty (both enlisted and officer) adds to 18 years, 1 month. If I add this DD214, then my time goes up to nearly 22 years. As Ive said, I was given the standard answer they give all academy graduates - that the time in the academy dies not count. However, i just found the original in my old files and did some research on BUPERS Instructions. The DD 214 in question IS NOT for the time while at the academy, but it IS for the time I was active duty enlisted, serving my remaining active duty obligation concurrently while at the academy (this total active duty time is less than the time I was at the academy, because I finished the obligation prior to graduation)
Thank you

I am away from the office for the next several hours. I will pull the code again when I return.
Ask Your Own Military Law Question
Sorry for the delay on this...I wanted to get back to be able to pull the US Code.

Regardless or what folks think/say it is the code that controls...that is, the answer to the question must be supported by the law.

Again I would invite your attention to 10 US Code 6323. This is the section that says once you have 20 active years, you can retire. So that leads to the next question...how do you get the active service (that comes from 10 US Code 101

I think the problem you may have is that DD214 may be in error...the one that you had for "dual service"

Did it give you active duty credit for that timeframe? The entire period (if you look at the DD214 it will list the # XXXXX active duty days in the period)

Ask Your Own Military Law Question
Customer reply replied 4 years ago
Thanks for you continuing help! Yes it does give me active duty credit, continous start to end dates. I dont believe it is in error because the BUPERS Instructions and the MILPERS manual (both of which are promulgation of Navy instructions complying with SECNAV Instruction and with US Code) spells out who and when a member is entitled to a DD214. The instructions are consistent with all that all I have been asserting.
I believe what will deny the inclusion of this active duty time is something which clearly states that active duty time served concurrent to academy attendance does not count. All I know of is something that states only that academy time does not count (but in these cases - a DD175 is not given to Academy graduates). None of my classmates (which were not prior enlisted and had obligated service remaining when entered) have a DD-175 for the period. Basic question is this: what can trump a legitmate DD-175 Certificate of Discharge From Active Duty?
I think you may be approaching this from the wrong angle...have you considered filing with the BCNR? If that time counts (and if they gave you a DD214, I think you have a great argument it counts) then BCNR can retire you now...have you gone to them yet?
Ask Your Own Military Law Question
Customer reply replied 4 years ago
No. I dont know who/what BCNR is. I will find out. Thank you!
Sir

BCNR is the Board of Corrections for Naval Records. They are the administrative agency tasked with correcting errors in Naval records. In your case, they are the folks who have the power to order you be retired.

There are one of two possibilities present.

1. The DD214 that you received for your "dual status" time that indicated the number of active duty days is accurate (that is, the days listed for active duty are, in fact, for days of active service.

I keep using that term. "active service" since that is what the law requires. In order to qualify for retirement you must meet the Title 10 US Code requirements. If you do? Then you rate retirement. Period.

2. That the DD214 you received for this time is in error (that you are not entitled to active status for this time.

I did some research into the MILPSRSMAN and the SECNAVISNT that applies and could not find anything that states clearly that this status you were in (the dual status) triggered active service credit. But at the same time I did not see it addressed to say that it did not count.

I would file a request with the BCNR to have your record changed to reflect you in retired status (based on your active duty time). That is the next step to press this. You file DD Form 149 to start this process

I did find something interesting.

If you look at title 38 US Code, section 1965, you see this

For the purpose of this subchapter—
(1) The term “active duty” means—
(A) full-time duty in the Armed Forces, other than active duty for training;
(B) full-time duty (other than for training purposes) as a commissioned officer of the Regular or Reserve Corps of the Public Health Service;
(C) full-time duty as a commissioned officer of the National Oceanic and Atmospheric Administration; and
(D) full-time duty as a cadet or midshipman at the United States Military Academy, United States Naval Academy, United States Air Force Academy, or the United States Coast Guard Academy.

So for Title 38 You were active duty. That said Title 38 is for VA benefits, and not title 10 service necessarily.

I would file the 149 form...and consider working with an attorney to help you complete it. What you describe, unless that DD214 is in error, you should qualify for retirement
P. Simmons
P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 35,692
Experience: Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
Verified
P. Simmons and 87 other Military Law Specialists are ready to help you
Ask your own question now
Customer reply replied 4 years ago
Thanks for info and all your help!
Ask P. Simmons Your Own Question
P. Simmons
P. Simmons
P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 35,692
35,692 Satisfied Customers
Experience: Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.

P. Simmons is online now

A new question is answered every 9 seconds

How JustAnswer works:

  • Ask an ExpertExperts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional AnswerVia email, text message, or notification as you wait on our site. Ask follow up questions if you need to.
  • 100% Satisfaction GuaranteeRate the answer you receive.

JustAnswer in the News:

Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.

What Customers are Saying:

Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises!

Gary B.Edmond, OK

My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer.

EricRedwood City, CA

I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight.

MichaelWichita, KS

PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent.

Three H.Houston, TX

Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!!

ElaineAtlanta, GA

It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem.

TonyApopka, FL

Wonderful service, prompt, efficient, and accurate. Couldn't have asked for more. I cannot thank you enough for your help.

Mary C.Freshfield, Liverpool, UK

< Previous | Next >

Meet the Experts:

P. Simmons

P. Simmons

Military Lawyer

35,692 satisfied customers

Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.

Allen M., Esq.

Allen M., Esq.

Lawyer

5,188 satisfied customers

Lawyer and current JAG officer.

Marsha411JD

Marsha411JD

Lawyer

1,828 satisfied customers

Licensed attorney and former Navy JAG serving ashore, afloat and at the OJAG

LawHelpNow

LawHelpNow

Attorney/Lawyer

223 satisfied customers

Relax. Let's work together. Practical solutions.

rcampione

rcampione

Military Lawyer

187 satisfied customers

Military lawyer - 5 years to the present

JAG Defense

JAG Defense

Military Lawyer

124 satisfied customers

CAPT, JAGC, USN (Retired); Former Military Judge; Specializing in Security Clearance Adjudications

Paul

Paul

Lawyer

48 satisfied customers

Oklahoma lawyer. Over 10 years in the military.

< Previous | Next >

Related Military Law Questions
I married my husband after he retired from the US Air Force.
I married my husband after he retired from the US Air Force. Am I entitled to any of his retirement pay after we divorce … read more
Expert James
Expert James
Doctoral Degree
11,710 satisfied customers
My dad Herbert L Sr. was retired from the Air Force and he
My dad Herbert L Barnes Sr. was retired from the Air Force and he has now died. I don't know if ha had a will or anything, and I was wondering if I was entitled to anything from him, my name is***** J… read more
Allen M., Esq.
Allen M., Esq.
Lawyer
Juris Doctor, Cum Laude
5,188 satisfied customers
I have a son who has applied to the Naval Academy and going
I have a son who has applied to the Naval Academy and going through the DODMERB medical evaluation, he was given some medical codes which I believe are not valid. … read more
P. Simmons
P. Simmons
Military Lawyer
35,692 satisfied customers
I graduated the naval academy in 2015 leaving me with 2.5
Hi, I graduated the naval academy in 2015 leaving me with 2.5 years left on my contract. I have been having a hard time in the military and after talking to my XO he said he could go through the paper… read more
Allen M., Esq.
Allen M., Esq.
Lawyer
Juris Doctor, Cum Laude
5,188 satisfied customers
Ive been in the air force for close to 6 years and will be
Second opinion] Hello,sir or ma'am! Ive been in the air force for close to 6 years and will be ending my contract in 2 months. Ive been suffering from mental health issues to include depression, memor… read more
P. Simmons
P. Simmons
Military Lawyer
35,692 satisfied customers
I will be separating from the Navy in a year. This is my
Hi, I will be separating from the Navy in a year. This is my second enlistment. Will I have to do any reserve time after and/or is there a time frame where I may be recalled? … read more
P. Simmons
P. Simmons
Military Lawyer
35,692 satisfied customers
My father was discharged from the US Nat'l Guard Reserves
My father was discharged from the US Nat'l Guard Reserves with form DD 256A in 1962. He is still alive and I'm wondering if he qualifies for any Veteran's assistance for Health purposes? … read more
P. Simmons
P. Simmons
Military Lawyer
35,692 satisfied customers
I am a Navy Officer facing a General Discharge/ADSEP on the
Greetings, I am a Navy Officer facing a General Discharge/ADSEP on the basis of an NJP awarded 12 months ago. The charges were article 92 and article 133. I had an attorney to appeal the NJP decision … read more
P. Simmons
P. Simmons
Military Lawyer
35,692 satisfied customers
I was medically discharged from air Force before completing
I was medically discharged from air Force before completing basic training. Does that qualify me for anything? … read more
P. Simmons
P. Simmons
Military Lawyer
35,692 satisfied customers
I am being discharged from the Air Force with a general
I am being discharged from the Air Force with a general discharge for marijuana use. I tested positive on a random UA. Prior to my discharge I received an article 15. Will this appear in a background … read more
Marsha411JD
Marsha411JD
Lawyer
Doctoral Degree
1,828 satisfied customers
I'm trying to get a copy of my DD 214 discharge papers.
I'm trying to get a copy of my DD 214 discharge papers … read more
P. Simmons
P. Simmons
Military Lawyer
35,692 satisfied customers
I recently retired from the Air Force and am trying to apply
I recently retired from the Air Force and am trying to apply my US Air Force Academy time to my current retirement system. The state law says that, "[Retirement](2) Membership service credit shall be … read more
P. Simmons
P. Simmons
Military Lawyer
35,692 satisfied customers
I have RE 3 separation code on my discharge papers. I got
i have RE 3 separation code on my discharge papers. I got into some things in bootcamp (mcrd) and wanted to join a diffrent branch. I didnt know how do so. So i disclosed depression and got sent home … read more
P. Simmons
P. Simmons
Military Lawyer
35,692 satisfied customers
Im very interested in joining the Coast Guard and finish my
Im very interested in joining the Coast Guard and finish my prior military obligation and I wanted to ask you a question about my eligibility . While I was in the Marine Corps back in 2008 I made a drastic and hard decision to not return to my unit after I was denied leave to see my first born son being born. I was young but felt like I made the best decision I could of made at the time and Because of that decision I got charged by the military for unauthorized absence and missing a movement resulting into 120 days in the brig and a Bad conduct discharge (Not dishonorable) (RE-3or4 I need to verify). I was never charged or convicted of anything in the civilian courts since those charges does not exist in our court/legal system. That being said I have since held employment in various company's in good standing and also was awarded my LTC-Class A unrestricted firearms license which is currently in good standing (Massachusetts) . My big question is would my past military experience automatically disqualify me to join the Coast Guard/Reserves? I know I will be great for this position and my past decision does not reflect my character of who I am today. I am a great worker and have great work ethic and I know the Department will benefit with me on the team. If you can please email me back that will be greatly appreciated. Thank you very much. … read more
P. Simmons
P. Simmons
Military Lawyer
35,692 satisfied customers
I was discharged from the air force in 1969 with an
I was discharged from the air force in 1969 with an honorable. At this date what chance do I have to upgrade?… read more
Allen M., Esq.
Allen M., Esq.
Lawyer
Juris Doctor, Cum Laude
5,188 satisfied customers
I retired from the Air Force Reserves with over 29 years of
I retired from the Air Force Reserves with over 29 years of service and was told I am still placed into the IRR for two years. If for some wild reason we went to war with North Korea and my unit dragg… read more
P. Simmons
P. Simmons
Military Lawyer
35,692 satisfied customers
My wife currently serves in the Air Force Reserves at Nellis
My wife currently serves in the Air Force Reserves at Nellis Air Force Base. This past Christmas Eve I found the evidence that she had been cheating for a while. The other party involved is a direct s… read more
Allen M., Esq.
Allen M., Esq.
Lawyer
Juris Doctor, Cum Laude
5,188 satisfied customers
I am a retired Air Force officer (retired 3 years) and was
I am a retired Air Force officer (retired 3 years) and was just contacted by OSI regarding an ongoing investigation of a (still) active duty officer I worked with 13 years ago. He is being charged wit… read more
P. Simmons
P. Simmons
Military Lawyer
35,692 satisfied customers

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

Show MoreShow Less

Ask Your Question

x