RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:          30 August 2005
      DOCKET NUMBER:  AR20040011313


      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             |
|     |Mr. Edmund P. Mercanti            |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Paul M. Smith                 |     |Chairperson          |
|     |Ms. Yolanda Maldonado             |     |Member               |
|     |Mr. Leonard G. Hassell            |     |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 based on the active duty
pay scale in effect at the time of his last retirement, 29 September 1994.
He also requests that he be paid all arrears in pay necessitated by this
correction.

2.  The applicant states that after his retirement for years of service, he
was recalled to active duty on 12 December 1991 and returned to the Retired
List on 29 September 1992.  He was again ordered to active duty on 1
October 1992 and returned to the Retired List on 29 September 1994.  He has
recently learned that if a military retiree is recalled to active duty, he
or she is retired at the pay scale in effect at the time of the last
retirement if he or she has served at least 2 years of active duty during
the recall.  The applicant states that he had served well over 2 years of
active duty broken by just two days, a break of active duty that he did not
request.

3.  The applicant provides excerpts from his military records and excerpts
from Title 10, U.S. Code.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of alleged injustice which
occurred on 29 September 1994, the date he was released from active duty
prior to his final placement on the Retired List.  The application
submitted in this case is dated 17 December 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 limitation 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 military records show that he was released from active
duty on 30 September 1991 and placed on the Retired List the following day
for years of service.  He was a U.S. Army Reserve (USAR) lieutenant
colonel.

4.  On 10 December 1991, the applicant was ordered to active duty for 179
days in his retired status in support of Operation Desert Storm.  His
orders were amended from 179 days of active duty to 293 days of active
duty.  He served on active duty from 12 December 1991 to 28 September 1992,
a period of 9 months and 17 days.

5.  On 17 September 1992, the applicant was ordered to active duty for 2
years in his retired status to be a member of the Transitional Assistance
Management Program (TAMP) task force.  Those orders were later amended from
reading 2 years of active duty to read 364 days of active duty.

6.  On 20 September 1993, the applicant was ordered to 1 year of active
duty with a reporting date of 30 September 1993.  He served on continuous
active duty from 1 October 1992 to 29 September 1994, a period of 1 year,
11 months and 29 days, between the two sets of orders.

7.  Title 10, U.S. Code, Section 1402, states that a member of an armed
force who first became a member before 8 September 1980, and who becomes
entitled to retired pay, who thereafter served on at least 2 years of
active duty (other than for training), is entitled to have their retired
pay recomputed under the rates of basic pay in effect on the day the member
is released from active duty and returned to the Retired List.

8.  In the processing of this case and advisory opinion was obtained from
the Human Resources Command (HRC), St. Louis, Missouri.  The HRC stated
that during Operation Desert Storm, the law which permits the recomputation
of pay for retirees who serve on two years or more of active duty was not
common knowledge as it is today.  Today, military retirees who are recalled
to active duty are briefed on this provision.  The HRC opines that if its
predecessor, The Army Reserve Personnel Command, had known about this
provision of law, it would have ensured that orders were issued to insure
the applicant would have been eligible to have his retired pay
recalculated.

DISCUSSION AND CONCLUSIONS:

1.  There is no error in the applicant’s military records.

2.  The Board must now evaluate whether an injustice occurred in this case.
 In this regard, the following items are considered:

      a.  Since the purpose for the applicant’s first and second period of
active duty are different, different fund sites would have had to be used.
There is no injustice in this scenario.  Therefore, the applicant’s
contention that since he did not request a break in active duty the break
in service was an injustice is not accepted.
      b.  However, the applicant was initially ordered to two years of
active duty to serve on the TAMP task force.  Those orders were later
amended to 364 days and a second set of orders were issued to continue the
applicant in the same status for another year.  It would appear that the
reason the orders were amended and a second set of orders were issued dealt
with fiscal year appropriations.

3.  While it is understood that orders must be amended to comply with
fiscal year appropriation limitations or other administrative requirements,
when such amendments cause a financial loss to the affected Soldier an
injustice is created.

4.  In order to correct this injustice, it will be necessary to correct
Orders A-09-000730 dated 20 September 1993, from reading “ACTIVE DUTY
COMMITMENT:  ONE YEAR”  to reading “ACTIVE DUTY COMMITMENT:  ONE YEAR AND
ONE DAY.”

5.  Based on this correction, Item 12b, Separation Date This Period, of the
applicant’s DD Form 214 for the period ending 29 September 1994, and all
other related military records, must be corrected to show that he was
released from active duty on 30 September 1994.  Also, Item 12c, Net Active
Service This Period, must be corrected from showing 1 year, 11 months and
29 days to showing 2 years.

6.  This correction will necessitate paying the applicant 1 day of active
duty pay for 30 September 1994.

7.  Since the applicant’s records are being corrected to show that he
served two continuous years of active duty as a military retiree, he is
entitled as an operation of law to have his retired pay recomputed in
accordance with Title 10, U.S. Code, Section 1402, and to be paid the
difference in pay this recomputation will necessitate retroactive to 1
October 1994.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___pms _  ___lgh___  ___ym___  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:

      a.  Orders A-09-000730 dated 20 September 1993, from reading “ACTIVE
DUTY COMMITMENT:  ONE YEAR”  to reading “ACTIVE DUTY COMMITMENT:  ONE YEAR
AND ONE DAY;”

      b.  Item 12b, Separation Date This Period, of the DD Form 214 for the
period ending 29 September 1994, and all other related military records, to
show that he was released from active duty on 30 September 1994;

      c.  Item 12c, Net Active Service This Period, of the DD Form 214 for
the period ending 29 September 1994, and all other related military
records, be corrected from showing 1 year, 11 months and 29 days to showing
2 years;

      d.  he was paid active duty pay for 30 September 1994; and

      e.  As an operation of law, to re-compute his retired pay in
accordance with Title 10, U.S. Code, Section 1402, and to be paid the
difference in pay this recomputation will necessitate retroactive to 1
October 1994.





            __________Paul M. Smith_________
                    CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20040011313                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20050830                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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