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P. Simmons
P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 34256
Experience:  Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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Hi,I am trying to find out if (most of) the the time spent

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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. 

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

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

Where you see

(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.

Customer: 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?
Customer: 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.
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 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)

Customer: 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?
Customer: replied 4 years ago.
No. I dont know who/what BCNR is. I will find out. Thank you!

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 and other Military Law Specialists are ready to help you
Customer: replied 4 years ago.
Thanks for info and all your help!

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