MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 3 June 2003
         DOCKET NUMBER: AR2002078689

         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.

Mr. Carl W. S. Chun		Director
Mr. Luis Almodova		Analyst

The following members, a quorum, were present:

Ms. Joann H. Langston		Chairperson
Ms. Jennifer L. Prater		Member
Mr. Paul M. Smith		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were 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 a 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 (including
         advisory opinion, if any)

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APPLICANT REQUESTS: In effect, that an adjustment be made to his retired pay since it is not what was promised.

APPLICANT STATES: In effect, in a lengthy appeal to the Board, that in late January 1994, the National Guard Bureau (NGB) had offered an early retirement program called TERA (Temporary Early Retirement Authorization) to accommodate downsizing. Some of the highlights of the program were: 1) once a person applied for retirement, the application could not be withdrawn; 2) retirement would occur on or about 30 September 1994; 3) retirement points accumulated from reserve points called M-day points would be calculated into retirement pay (up to 60 points per year). These points were to be added to all active duty points for retirement.

The applicant states that on 1 February 1994, he signed an agreement to retire early. He was notified that his retirement had been approved and he would be discharged on 30 June 1994. He appealed the date that had been established with support of the Adjutant General (AG) of the State of New Mexico, and asked that the retirement date be changed back to 30 September 1994. The change in date was denied twice. The NGB gave some ground and changed the retirement date to 31 August 1994. He agreed reluctantly to this changed date because he felt he had no other choice, the AG of the State of New Mexico had given up the fight, and his family problems were taking a toll on him.

He adds that he went through the retirement process at Fort Bliss, Texas. He was shown a document that calculated his retired pay at $1191.00. He told the clerk that the figure was not correct because it did not include his M-Day points. He also received a calculation from the NGB, which took his active duty and the M-Day points into account. The NGB estimated that his retirement pay would be $1330.60. He felt that the NGB's estimate, which was prepared on 20 February 1994, took precedence over the one from the AG's office dated 1 February 1994.

He continues by saying that in August 1994, he received a letter welcoming him to retired status and was notified that his check would be $1191.00. He knew this was not correct because the NGB had failed to include his M-Day points. He immediately wrote to the NGB but received no response. He wrote to the NGB a second time on 1 December 1994. In a response to this letter, the applicant states that he was told, "….it came to our attention that M-day time did not count towards retirement…" The letter, he states, went on to say, "states…to include New Mexico, were informed that M-day time did not count for retirement and soldiers impacted by this change should be informed." His summary of paragraph 4 of the reply he received basically stated that since M-day points did

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not count, the NGB and the Defense Finance and Accounting Service (DFAS) had no authority to change the pay calculation.

Throughout the process, he was not informed about the disallowance of M-day points. He alleges that NGB did not provide guidance to the states to inform TERA retirees that M-day points did not count because it, he states, is obvious to him, that the NGB did not know the law about M-day points.

He states that the law about M-day points was changed approximately 27 March 1995. The effective date of the change was made retroactive to 5 October 1994. He was "forced out on 31 August 1994." He renewed his effort through his Member of Congress (MOC) to have his M-day points included in his pay computation. His MOC sent him two computations that had been provided him in response to his inquiry in behalf of the applicant. One estimate illustrated the amount of retired pay without reserve service credit and the other incorporated the credit into the benefit. Both outcomes were estimates that had been made at Fort Bliss and sent to DFAS. The MOC was informed, in the reply, that the change to the law that allowed inclusion of M-day points was retroactive to 5 October 1994, and since he [the applicant] had retired effective 31 August 1994, he did not qualify.

He states that he was not treated fairly and promises made to him were not fulfilled. The applicant offers three solutions for resolving the issue and concludes that, "I just want what was promised to me."

The applicant submitted no documentary evidence to support his request and his contentions.

EVIDENCE OF RECORD: The applicant's military records show:

The applicant enlisted in the New Mexico Army National Guard (NMARNG) for 6 years on 7 November 1966. He was ordered to active duty for training on 29 May 1967 and was honorably released from active duty and returned to State Control as a member of the NMARNG on 6 October 1967. The applicant served through 10 extensions of his original enlistment.

On 4 November 1987, the applicant was notified by NGB Memorandum, Subject: Notification of Eligibility for Retired Pay at Age 60 in Accordance with the Provisions of Title 10, US Code, Chapter 67, that he would be eligible to receive retired pay at the age of 60.

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On 8 May 1989, the applicant extended his service for 3 years. His ETS (Expiration of Term of Service) was established as 6 November 1996. This would be his final extension before his voluntary early retirement.

On 1 November 1990, the applicant was ordered to full time National Guard duty in the Active Guard/Reserve (AGR) under the provisions of Title 32, United States Code 502, Public Law 98-94, for a period of 60 months. His active duty obligation was to expire on 31 October 1995.

On 31 August 1994, the NMARNG honorably discharged the applicant from the National Guard in the rank of Master Sergeant, pay grade, E-8, and assigned him, in accordance with National Guard Regulation 600-200, paragraph 8-27v, to the US Army Reserve Control Group (Retired Reserve). The NGB Form 22, Report of Separation and Record of Service, prepared for him credits him with 27 years, 9 months, and 25 days total service for pay. The DD Form 214, Certificate of Release or Discharge from Active Duty, shows the same total amount of service for pay purposes. The Army National Guard Current Annual Statement filed in the applicant's service personnel records shows the same amount of creditable service for retirement purposes. On 31 August 1994, the applicant had 6,244 Active Duty Points, 7,260 Total Career Points, and 6,950 Total Points for Retired Pay.

The Army National Guard Current Annual Statement filed in the applicant's service personnel records shows that the applicant had 27-plus good years of service. The term "good years" is an unofficial term used to mean years in which 50 or more retirement points were earned during each year, and which count as qualifying years of service for retirement benefits at age 60. During the applicant's last service period (less than one year, which extended form 7 November 1993 to 31 August 1994, he had accumulated 12 Membership Points, 298 Active Duty Points, 310 Total Career Points, and 298 Total Points for Retirement Pay.

The applicant states that he submitted an Application for Voluntary Retirement, DA Form 2339, on 1 February 1994, under the Early Retirement Authority (TERA), with a desired retirement date of 30 September 1994. This application for voluntary retirement is not on file in the applicant's service personnel records

The applicant submitted an application for voluntary retirement with a date of 3 March 1994. Although the application itself is not available for review by the Board, a series of endorsements, from the 1st through the 6th, are available for review, and all indicate that his application was submitted on 3 March 1994. The desired retirement date is not known, but the 1st and 3rd endorsements indicate that the retirement was approved for 30 June 1994.

A 3 March 1994 Memorandum from the NGB, Subject: Voluntary Separation Incentive Program (VSIP) and Early Retirement (TERA) Application, for the Adjutant General, New Mexico, approved the applicant's application for the early retirement with release from his Active Guard Reserve (AGR) status to be NLT (not later than) 30 June 1994.

The applicant acknowledged receipt of notification that the NGB had approved his application for early retirement under TERA and that he would be released from the AGR program effective 30 June 1994, as directed by the NGB. It was requested that he acknowledge receipt of a copy of the endorsement and out-processing instructions before 25 March 1994. A date of acknowledgement is not shown on the endorsement; but, he requested that terminal leave begin on 22 June 1994.

A DA Form 2339, dated 17 May 1994, with a desired retirement date of 31 August 1994, is on file in the applicant's service personnel records. This application has no letter of transmittal or endorsements to indicate that it was sent anywhere.

On 21 June 1994, the State of New Mexico, Department of Military Affairs, Military Division, published orders reassigning the applicant from Headquarters, State Area Command, Santa Fe, with duties in Roswell, New Mexico, to the US Army Separation Transition Point, Fort Bliss, Texas, with a reporting date of 27 June 1994 and a scheduled date of separation of 31 August 1994.

On 24 June 1994, Headquarters, US Army Air Defense Artillery Center and Fort Bliss, published Orders 117-16 releasing the applicant from active duty with an effective date of 31 August 1994, and on the following date, placing him on the retired list.

When he went through the retirement process at Fort Bliss, the applicant alleges to have been shown a document that calculated his retired pay at $1191.00. He told the clerk that the figure was not correct because it did not include his M-Day points. This document is not on file in the applicant's service personnel records.

The applicant alleges to have received a calculation from the NGB, which took his active duty and the M-Day points into account. The NGB estimated that his retirement pay would be $1330.60. This document is also not on file in the applicant's service personnel records and he did not provide it in support of his application for correction of his records.

In August 1994, he received a letter welcoming him to retired status and was

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notified that his check would be $1191.00. The applicant did not identify the source that provided this letter to him.

Army Regulation (AR) 135-180 implements statutory authorities governing granting of "retired pay" to soldiers and former Reserve components soldiers. Paragraph 2-11 of this regulation states that retired pay will be computed by the Retired Pay Division, US Army Finance Support Agency, Indianapolis, Indiana, upon receipt of orders and data prescribed in paragraph 2-10 from the Commander, ARPERCEN (Army Reserve Personnel Center) St. Louis, Missouri. Computation of pay was formerly done in accordance with AR 37-104-1. The basic authority for retired pay computations has been revised. The authority is now contained in DoD Financial Management Regulation, Volume 7B, Chapter 3, paragraph 030110A.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. The evidence of record shows that the applicant applied for retirement under the provisions of TERA. The originally submitted DA Form 2339, with a desired date of retirement of 30 September 1994, is not available for review by the Board.

2. There is evidence that the retirement date that was originally approved was 30 June 1994. There is evidence that he appealed this date and with support of the AG of the State of New Mexico, the retirement date was negotiated to 30 September 1994.

3. The applicant did not provide the document that announced the opportunity for, and implementation of the early retirement program under TERA for soldiers in the State of New Mexico. He also did not provide the document in which the alleged promise that M-day points would be included in computations in establishing the level of his and other soldiers' retired pay, was made.

4. The applicant’s record does not contain, and the applicant did not provide, a copy of the computations to estimate the level of his retired pay that were prepared for him at Fort Bliss and by the National Guard Bureau.

5. The applicant did not provide a copy of the two estimates that were provided to his MOC, and in turn to the applicant, in response to the MOC's inquiry, on behalf of the applicant, that had been made at Fort Bliss and sent to DFAS.

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6. Responsibility for establishing the level of retired pay rests with DFAS in accordance with AR 135-180; all other computations are estimates. The Board therefore presumes government regularity in the computation and establishment of the retired pay to which the applicant is entitled.

7. The applicant received his 20-Year Letter on 4 November 1987. The applicant is entitled to have his retired pay recomputed when he reaches the age of 60 and to have his M-day points added to the computation at that time. If the applicant feels at any time that he is not receiving the correct amount of retired pay, he can submit a request for a review of his retired pay account to the Defense Finance and Accounting Service, US Military Retirement Pay, PO Box 7130, London, Kentucky 40742-7130, Telephone Number (800)-321-1080.

8. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__jhl___ __jlp___ __pms___ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2002078689
SUFFIX
RECON
DATE BOARDED	20030603
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	128.0000
2.	128.1400
3.	135.0000
4.	135.0200
5.
6.