RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         22 August 2006
      DOCKET NUMBER:  AR20050015335


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. Jerome L. Pionk               |     |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, in effect, that his record be corrected to show
his retired pay was computed based on 26 years of service.

2.  The applicant states, in effect, that he always believed that he was
receiving retired pay for 26 years of service, and that he had $20,000 of
life insurance coverage.  He claims he was misled when he was told that he
did not have to request leave to receive a cost of living allowance
increase.

3.  The applicant provides no additional documentary evidence in support of
his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 30 September 1979, the date of his release from active
duty (REFRAD) for retirement.  The application submitted in this case is
dated
21 October 2005.

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 record shows that on 30 September 1979, he was
honorably REFRAD for the purpose of retirement.  His Military Personnel
Records Jacket (MPRJ) contains an Application for Voluntary Retirement (DA
Form 2339) he completed on 15 June 1979, in which he requested retirement
on 1 October 1979.  Item 16 (Total Active Service Creditable for
Retirement) shows he completed 23 years, 6 months, and 4 days of active
military service.  Item 18 (Total Service for Basic Pay Purposes) shows he
completed a total of 26 years and 21 days of military service for pay
purposes.

4.  A Data for Retired Pay (DA Form 3713), dated 16 August 1979, which was
completed on the applicant during his retirement processing, shows he
completed a total of 23 years, 6 months, and 4 days of active duty service
for retirement percentage purposes and 26 years and 21 days of service for
basic pay (Pay Scale) purposes.
5.  On 31 December 1979, the applicant was honorably REFRAD for the purpose
of retirement.  The separation document (DD Form 214) he was issued at the
time shows he held the rank of sergeant first class, and that he completed
a total of 23 years, 6 months, and 4 days of active military service and a
total of
26 years and 21 days of service for pay purposes.  The applicant
authenticated the DD Form 214 with his signature on the date of his
separation.

6.  In connection with the processing of this case, an advisory opinion was
obtained from the Retired and Annuity Pay Branch, Defense Finance and
Accounting Service (DFAS).  This opinion confirms the applicant's retired
pay was computed using 26 years and 21 days of military service for basic
pay rate (Pay Scale) purposes, and 24 years, which was rounded up from the
23 years,
6 months, and 4 days of active military service actually completed, for
percentage purposes.

7.  The DFAS advisory opinion further indicates that the governing pay law
in effect at the time of the applicant's retired pay account was
established stipulated that members whose entitlement to retired pay
commenced on 1 October 1979 were not entitled to retired pay based on 1
October 1979 pay rates.  Instead these members were entitled to have their
retired pay be based on the 1 October 1978 pay rate increased by an 8.9
percent (%), or the 1 October 1977 pay rate increased by 6.1%, 3.9%, and
6.9%, whichever was greater.  In the applicant's case, his retired pay was
computed using a basic pay rate (Pay Scale) for a SFC with over 26 years of
service.  His retirement percentage was 60%, which was based on completion
of 24 years of active military service, and this was increased by COLA
increases of 6.1%, 3.9%, and 6.9%.  Finally, it indicates that all
applicable COLA increases have been applied to his account, and he is being
paid at the most advantageous computation.

8.  On 19 July 2006, the applicant was provided a copy of the DFAS advisory
opinion in order to have the opportunity to respond to its contents, and he
was requested to reply within 15 days.  To date, he has failed to provide a
response.

9.  Title 10 of the Untied States Code, Section 1406 (10 USC 1406),
provides guidance on the retired base pay.  It states, in pertinent part,
that retired pay base is the monthly basic pay to which a member was
entitled on the day before he retired.  10 USC 1409 provides guidance on
retired pay multipliers.  It states, in effect, that the retirement
percentage is 2 1/2% for each year of creditable active military service.

10. Servicemembers' Group Life Insurance (SGLI) is a program of low cost
group life insurance for service members on active duty.  Service members
with SGLI coverage have two options available to them upon release from
service.  They can convert their full-time SGLI coverage to term insurance
under the Veterans' Group Life Insurance (VGLI) program, or convert to a
permanent plan of insurance with a participating commercial insurance
company.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was unjustly denied a pay raise at
the time of his retirement was carefully considered.  However, there is
insufficient evidence to support this claim.

2.  As evidenced by the DFAS advisory opinion, while the applicant was not
entitled to receive retired pay based on the 1 October 1979 pay rate, his
retired pay was computed using the most advantageous pay formula he was
authorized at the time.  As a result, it would not be appropriate to adjust
his retired pay at this time.

3.  The specific error or injustice the applicant is asserting in regard to
life insurance (SGLI) coverage is unclear.  However, the applicant is
advised that life insurance is not a continuing retirement benefit.  SGLI
is a low insurance program available only to active duty Soldiers.  SGLI
may be converted to a VGLI program, or to a civilian policy with a
participating civilian insurance company upon a member's release from
active duty; however, this is not an Army retirement benefit and is done at
the sole discretion of the member.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 1 October 1979, the date of his
retirement.  Therefore, the time for him to file a request for correction
of any error or injustice expired on 30 September 1982.  He failed to file
within the 3-year statute of limitations and has not provided a compelling
explanation or evidence to show that it would be in the interest of justice
to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___LDS _  ___JTM _  ___JLP__  DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate
the existence of a probable error or injustice.  Therefore, the Board
determined that the overall merits of this case are insufficient as a basis
for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                  _____Linda D. Simmons____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050015335                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2006/08/22                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1979/09/30                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |Retirement                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |135.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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