RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 3 April 2007
DOCKET NUMBER: AR20060012148
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. Gerard W. Schwartz | |Acting Director |
| |Mrs. Nancy L. Amos | |Analyst |
The following members, a quorum, were present:
| |Mr. John P. Infante | |Chairperson |
| |Ms. Susan A. Powers | |Member |
| |Mr. Qawiy A. Sabree | |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 corrected to show he
retired as an O-3E (a captain with over four years enlisted service).
2. The applicant states that prior to resuming his military career in 1993
he was told by the National Guard recruiter that if he enlisted as an E-5,
given his previous commissioned service, he would retire as an O-3E.
During that period of his life he was very busy with his banking career as
well as attempting to be the best husband and father that he could be. He
did not believe he could commit the time required to successfully manage a
career as a Reserve officer. That recruiter information was and has been
an important factor throughout his combined Texas National Guard and U. S.
Army Reserve service. However, he recently learned he would not receive
retired pay as an O-3E.
3. The applicant states that given the commitment that was made to him and
the honorable and faithful service he has given to his country, he
respectfully requests that his retired pay reflect his contributions and
that he be retired as an O-3E.
4. The applicant provides a resume and a copy of his retirement orders.
CONSIDERATION OF EVIDENCE:
1. The applicant was born on 17 September 1946. He served in the U. S.
Air Force in an enlisted status from 26 August 1968 through 25 August 1969.
He served in the U. S. Air Force Reserve as a commissioned officer from 26
August 1969 through 30 August 1976.
2. On 21 August 1993, the applicant enlisted in the Army National Guard.
He transferred to the U. S. Army Reserve on or about 21 August 2001.
3. On 17 September 2006, the applicant was placed on the retired list as a
captain and is being paid retired pay as an O-3.
4. Title 37, U. S. Code, section 203(d)(1) states the basic pay of a
commissioned officer who is in pay grade O-1, O-2, or O-3 and who is
credited with a total of over four years’ service described in paragraph
(2) shall be computed in the same manner as the basic pay of a commissioned
officer in the same pay grade
who as been credited with over four years’ active service as an enlisted
member. Section 203(d)(2) states service to be taken into account for
purposes of computing basic pay under paragraph (1) is as follows:
(A) Active service as a warrant officer or as a warrant officer and
an enlisted member, [or]
(B) Service as a warrant officer, as an enlisted member, or as a
warrant officer and an enlisted member, for which at least 1,460 points
have been credited to the officer for the purposes of section 12732(a(2) of
Title 10.
DISCUSSION AND CONCLUSIONS:
1. The applicant served one year in an enlisted status prior to being
commissioned an officer in the U. S. Air Force Reserve. Since he did not
have over four years of enlisted service at that time, he was never paid as
an O-1E, O-2E, or O-3E.
2. The Army is not liable for the erroneous actions of its officers,
agents, or employees, even though committed in the performance of their
duties. There is no evidence to show the “commitment” that the applicant
would be paid retired pay as an O-3E was ever put in writing.
3. The applicant was never paid as an O-1E, O-2E, or O-3E. In his
civilian career he was a banker, where it was unlikely he relied on the
verbal word of customers in making monetary decisions. It is not credible
to believe he relied solely on the recruiter’s information that he would be
paid retired pay as an O-3E or that it was an important factor in his
remaining in the Reserve Components.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
__jpi___ __sap___ __qas___ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
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.
__John P. Infante_____
CHAIRPERSON
INDEX
|CASE ID |AR20060012148 |
|SUFFIX | |
|RECON | |
|DATE BOARDED |20070403 |
|TYPE OF DISCHARGE | |
|DATE OF DISCHARGE | |
|DISCHARGE AUTHORITY | |
|DISCHARGE REASON | |
|BOARD DECISION |DENY |
|REVIEW AUTHORITY |Mr. Schwartz |
|ISSUES 1. |128.14 |
|2. | |
|3. | |
|4. | |
|5. | |
|6. | |
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