PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 14 August 2001
         DOCKET NUMBER: AR2001055419


         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Ms. Wanda L. Waller		Analyst

The following members, a quorum, were present:

Mr. Walter T. Morrison		Chairperson
Mr. Ronald E. Blakely		Member
Mr. Joe R. Schroeder		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests, in effect, that he receive credit for Active Duty for Training (ADT) in the Texas Army National Guard for retirement purposes. He also requests that his National Guard service be shown on his discharge document.

3. The applicant states, in effect, that he was told that National Guard service is considered when calculating military retirement. He contends that his DD Form 214 (Certificate of Release or Discharge from Active Duty) does not reflect the years that he spent in the Texas National Guard and that his military retirement should be increased in pay. In support of his application, he submits a DD Form 214 (Report of Separation from Active Duty) with an effective date of 9 July 1974; two NGB Forms (Report of Separation and Record of Service) with effective dates of 9 April 1978 and 31 October 1975; a Retirement Credits Record; and a DD Form 214 with an effective date of 30 April 1997.

4. The applicant’s military records show that he served two years on active duty in the Marine Corps from July 1972 to July 1974. He subsequently served in the Marine Corps Reserve, the Texas Army National Guard, the United States Army Reserve (USAR) and in the Regular Army as an enlisted member and as a commissioned officer. On 28 April 1997 the applicant reverted from a commissioned officer status to enlisted status in order to participate in the Fiscal Year 1997 Regular Army Enlisted Early Retirement Program. On 30 April 1997, the applicant was retired in the grade of sergeant first class under the provisions of Army Regulation 635-200, chapter 12, for voluntary early retirement.

5. Item 12e (Total Prior Inactive Service) on the applicant’s retirement DD Form 214 with an effective date of 30 April 1997 shows that he served 4 years and
3 days in an inactive status.

6. His records contain a DA Form 2339 (Application for Voluntary Retirement), dated 18 February 1997, which shows the applicant’s total active service creditable for retirement was 19 years, 7 months and 6 days. This form also shows the applicant’s total inactive service creditable for basic pay was 4 years and 3 months and that his total service for basic pay purposes was 23 years,
7 months and 9 days.

7. Headquarters III Corps and Fort Hood Orders 049-0245, dated 18 February 1997, show the entries “Vol [volunary] retirement: 19 years, 7 months, 6 days”, “Section 1405: 19 years, 9 months, 6 days” and “Basic pay: 23 years, 7 months, 9 days”.

8. In the processing of this case, a staff advisory opinion was obtained from the U.S. Total Army Personnel Command, Chief, Retirements and Separations Branch. The opinion recalculated the applicant’s chronological dates of military service and provided a DA Form 7301-R (Officer Service Computation for Retirement), dated 17 May 2001. The DA Form 7301-R shows the applicant’s total active service (enlisted and commissioned service) is 19 years, 8 months and 21 days; that the applicant’s “1405” service is 20 years, 2 months and
20 days; and that the applicant’s total service for pay purposes is 24 years,
9 months and 24 days. The Chief, Retirements and Separations Branch contends that the applicant should be compensated for the additional service that was omitted during his initial retirement orders from Fort Hood, Texas.

9. On 25 May 2001, the advisory opinion was provided to the applicant for review and possible rebuttal. The applicant concurred with the advisory opinion rendered in his case on 30 May 2001.

10. Section 4403 of the National Defense Authorization Act for Fiscal Year 1993 (Public Law 102-484), as amended, provided for a temporary early retirement authority during the force reduction transition for enlisted personnel on active duty. The purpose of this legislation was to provide the Secretary of Defense with an additional temporary force management tool to effect the drawdown of forces. The law amended Section 3914, Title 10, United States Code to allow early retirement of an enlisted member with at least 15 years but less than 20 years of service. The active force drawdown period is defined as beginning on 23 October 1992 and ending on 1 October 1999; however, Congress has enacted legislation which has extended the period of the drawdown and the early retirement authority to 1 October 2001.

11. Chapter 71 of Title 10 United States Code governs computation of retired pay. Section 1405 of this chapter specifically governs computation of years of service for retired pay purposes. This provision of law states that for the purposes of computation of the years of service of a member of the armed forces under a provision of this title, the years of service of the member are computed by adding: (1) his years of active service; (2) the years of service not included in clause (1) with which he was entitled to be credited on 31 May 1958 in computing his basic pay; and (3) the years of service not included in clause (1) or (2) with which he would be entitled to be credited under section 12733 of this title if he were entitled to retired pay under section 12731 of this title. Section 12731 governs age and service requirements for retired pay for non-regular service and section 12733 governs the computation of years of service for non-regular retired pay.

CONCLUSIONS:

1. At the time the applicant submitted his DA Form 2339 (Application for Voluntary Retirement), his total active service creditable for retirement was calculated as 19 years, 7 months and 6 days. In addition, his DA Form 2339 shows that his total inactive service creditable for basic pay was calculated as
4 years and 3 days. His application for voluntary retirement also shows that he was credited with 23 years, 7 months and 9 days of total service for basic pay purposes.

2. The applicant’s retirement Orders 049-0245, dated 18 February 1997, show the entries “Vol [volunary] retirement: 19 years, 7 months, 6 days”, “Section 1405: 19 years, 9 months, 6 days” and “Basic pay: 23 years, 7 months, 9 days”.

3. Item 12e (Total Prior Inactive Service) on the applicant’s retirement DD Form 214 shows he served 4 years and 3 days of inactive service.

4. The advisory opinion from the U.S. Total Army Personnel Command, Chief, Retirements and Separations Branch recalculated the applicant’s chronological dates of military service. The DA Form 7301-R, dated 17 May 2001, shows the applicant’s total active service creditable for retirement was 19 years, 8 months and 21 days, his total inactive service creditable for basic pay was 5 years,
1 month and 3 days and the applicant was credited with 24 years, 9 months and 24 days of total service for basic pay purposes. The DA Form 7301-R also shows the applicant’s “1405” service should be 20 years, 2 months and
20 days.

5. In view of the foregoing facts and determinations, the applicant is entitled to:

         a. Correction of Headquarters III Corps and Fort Hood Orders 049-0245, dated 18 February 1997, to show the entries “Vol retirement: 19 years,
8 months, 21 days”; “Section 1405: 20 years, 2 months, 20 days” and “Basic pay: 24 years, 9 months, 24 days;

         b. Correction of item 12e (Total Prior Inactive Service) on his retirement DD Form 214 to show 5 years, 1 month and 3 days; and

         c. Payment of all back retired pay to which he is entitled based on correction of his military service creditable for retired pay purposes.

RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected:

         a. by amending Headquarters III Corps and Fort Hood Orders 049-0245, dated 18 February 1997, to show the entries “Vol retirement: 19 years,
8 months, 21 days”; “Section 1405: 20 years, 2 months, 20 days” and “Basic pay: 24 years, 9 months, 24 days; and

         b. by deleting the entry “0004 00 03” in item 12e (Total Prior Inactive Service) on the DD Form 214 with an effective date of 30 April 1997 of the individual concerned; and

         c. by adding the entry “0005 01 03” in item 12e on his DD Form 214.
                 
2. That, upon completion of corrections to all records and orders, the Defense Finance and Accounting Service audit the applicant’s retired pay account to determine all monies due to the applicant, if any, and that the applicant be paid all monies due to him, if any.

BOARD VOTE:

WTM___ REB____ JRS_____ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  __Walter T. Morrison_____
                  CHAIRPERSON

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INDEX

CASE ID	AR2001055419
SUFFIX
RECON
DATE BOARDED	20010814
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(GRANT)
REVIEW AUTHORITY
ISSUES 1.	113.0000
2.	100.0000
3.
4.
5.
6.