RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           2 August 2005
      DOCKET NUMBER:  AR20040009893


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Mr. Robert Duecaster              |     |Member               |
|     |Ms. Jeannette R. McCants          |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his retired pay be computed using the final
pay calculation.

2.  The applicant states that his retired pay was erroneously computed
using the High-3 rule.  He entered the U. S. Military Academy on 6 July
1977 even though he did not graduate until 1981.

3.  The applicant provides a newspaper article; a 14 January 2002 letter to
the Defense Finance and Accounting Service (DFAS); a DFAS retired pay
calculation dated 25 July 2001; two undated letters from DFAS to him; a 24
June 2003 letter from him to DFAS (plus the same letter, only undated); a
17 October 2004 email to the Fort McCoy, WI Retirement Services Officer and
a response dated 19 October 2004; an 11 October 2004 letter to the U. S.
Total Army Personnel Command; a copy of a certified mail certificate dated
6 August 2003; and an undated note to DFAS.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on    1 July 2001.  The application submitted in this case is
dated 2 November 2004.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant's U. S. Military Academy contract is not available.  He
was commissioned out of the Academy on 27 May 1981.  He retired on 1 July
2001.

4.  A Summary of Retired Pay Account prepared on 25 July 2001 indicated the
applicant had entered the military after 7 September 1980 and therefore his
retired pay would be computed using his monthly base pay (the average of
the 36 highest monthly basic pay rates he received on active duty) instead
of his last active duty basic pay.

5.  Title 10, U. S. Code, section 1406 states that the retired pay base of
any person entitled to retired pay under section 3911 (retirement of a
commissioned officer for length of service) who first became a member of a
uniformed service before 8 September 1980 is computed based upon the
monthly basic pay of the member's retired grade.

6.  Title 10, U. S. Code, section 1407(a) states that the retired pay of
any person entitled to that pay who first became a member of a uniformed
service after         7 September 1980 is computed using the retired pay
base determined under this section.  Subsection 1407(b) states that, except
as provided for in subsection 1407(f) (pertaining to certain enlisted
members), the retired pay base of a person under this section is the
person's high-three average determined under subsection (c) (Regular
service) or (d) (non-Regular service) (also known as High-3).

7.  Title 10, U. S. Code, subsection 1407(c) states that the general rule
is the high-three average of a member entitled to retired pay under any
provision of law other than sections 1204 (members on active duty for 30
days or less or on inactive-duty training: retirement), 1206 (members on
active duty for 30 day or less or on inactive-duty training: separation),
or 12731 (non-Regular retirement) of this title is the amount equal to:

     (A) the total amount of monthly basic pay to which the member was
entitled for the 36 months (whether or not consecutive) out of all the
months of active service of the member for which the monthly basic pay to
which the member was entitled was the highest, divided by

     (B)  36.

8.  The U. S. Army Human Resources Command Military Personnel Message
Number 03-103, Subject:  DIEMS (date initially entered military service)
Date Accuracy, stated that the DIEMS is the date an individual was
initially enlisted, inducted, or appointed in a Regular or Reserve
Component of a uniformed service as a commissioned officer, warrant
officer, or enlisted member.  The DIEMS date for a West Point cadet is the
date of entry into the Academy.  This date is used solely to indicate which
retirement plan a member is under.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's U. S. Military Academy contract is not available;
however, as he was appointed a commissioned officer on 27 May 1981 after
graduating from the Academy it stands to reason that he entered the Academy
sometime in 1977.

2.  The applicant states he entered the Academy on 6 July 1977.  The Board
accepts that date as the date he entered the Academy.  Therefore, his
records should be corrected to show his DIEMS as 6 July 1977 and his
retired pay should be computed based upon the monthly basic pay of his
retired grade and not on his High-3.

BOARD VOTE:

__wdp___  __rd____  __jrm___  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
a recommendation for relief and to excuse failure to timely file.  As a
result, the Board recommends that all Department of the Army records of the
individual concerned be corrected by showing his DIEMS as 6 July 1977,
recomputing his retired pay accordingly, and paying to him any and all back
due retired pay.




            __William D. Powers___
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040009893                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050802                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |128.14                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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