RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        13 February 2007
      DOCKET NUMBER:  AR20060009246


      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             |
|     |Ms. Deyon D. Battle               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Hubert Fry                    |     |Chairperson          |
|     |Mr. William Crain                 |     |Member               |
|     |Mr. Dale DeBruler                 |     |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, amendment of his retirement orders to reflect
his length of service as 22 years and 5 months for retired pay purposes.

2.  The applicant states that the only way he can receive retroactive pay
from the Defense Finance and Accounting Services (DFAS) is to have his
retirement orders amended.  He states that initially, his Certificate of
Release or Discharge (DD Form 214) was incorrect.  However, a correction
was made and he was furnished a Correction to DD Form 214 (DD Form 215) to
reflect his actual length of service.  He states that his orders were never
amended to reflect the correction and that DFAS must receive amended orders
to provide him back pay.

3.  The applicant provides in support of his application, a copy of his DD
Form 214, and a copy of his DD Form 215.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
which occurred on 28 February 1990.  The application submitted in this case
is dated 21 June 2006.

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 was inducted into the Army on 15 September 1967 in Kansas
City, Missouri, and he successfully completed his training as an
infantryman.  He remained on active duty through a series of reenlistments.

4.  On 28 February 1990 he was honorably retired under the provisions of
Army Regulation 635-200, chapter 12, for length of service.  The DD Form
214 that he was furnished at the time of his retirement shows his net
active service as 14 years, 9 months, and 3 days; and his total prior
active service as 7 years, 7 months, and 3 days.

5.  In an application to this Board dated 20 February 2006, the applicant
requested correction of the term of service according to his records.  He
requested that his records show that he completed 22 years, 5 months, and
13 days of total active service.

6.  On 30 March 2006 the United States Army Human Resources Command,
St. Louis, Missouri, administratively corrected the applicant DD Form 214,
by furnishing him a DD Form 215 show his net active service as 14 years,
9 months, and 22 days; and his total prior active service as 7 years, 8
months, and 12 days.

7.  During the processing of his case an advisory opinion was obtained from
the Chief, Veterans Support Branch, St. Louis, Missouri, who opined, in
effect, that since the applicant's orders do not disclose his total active
service, there is no need to correct his orders.  The Chief, Veterans
Support Branch stated that the applicant’s records did not account for all
dates of his active service when he applied for voluntary retirement and
there is a Data For Retired Pay (DA Form 3713) sheet in his file that was
prepared on 27 September 1989 showing an active service computation of 22
years, 4 months, and 16 days, which is 29 days incorrect.  The Chief,
Veterans Support Branch stated that according to information that she
obtained, DFAS will not pay the difference because the DA Form 3713 was
issued more than 6 years ago, unless directed by this Board.

8.  On 6 December 2006 a copy of the advisory opinion was forwarded to the
applicant for his concurrence and/or possible rebuttal.  The applicant
concurred with the advisory opinion on 12 December 2006.

DISCUSSION AND CONCLUSIONS:

1.  The question in this case is whether the applicant is entitled to back
pay retroactive to the date of his retirement.  The evidence of record
shows that he is entitled to correction of his records and back pay as
requested.

2.  Although there is no basis for amending the applicant's retirement
orders, the computation of his years credited for retirement or retired pay
on his DA Form 3713 is incorrect.

3.  The available evidence of records show that he was inducted into the
Army on 15 September 1967 and he remained on active duty through a series
of reenlistments until he as was released from active duty for the purpose
of retirement on 28 February 1990.  According to these dates, the applicant
completed 22 years, 5 months, and 13 days of total active as he contends
and his records should be corrected accordingly.
4.  In view of the foregoing, it would now be in the interest of justice to
correct the applicant's records as recommended below.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 28 February 1990; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 27 February 1993.  The applicant did not file within
the 3-year statute of limitations; however, based on the available evidence
or argument, it would be in the interest of justice to excuse failure to
timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

___HF __  __WC___  ___DD __  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial 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 amending his DA Form
3713 and all appropriate documents to show that he completed 22 years, 5
months, and 13 days of total active service on 28 February 1990, and
awarding all back pay and allowances due to him as a result of this
correction.

2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
amending his retirement orders to reflect his length of service as 22
years, 5 months, and 13 days.




                            ______  Hubert Fry_________
                                      CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060009246                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070213                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  1021 |100.0000/ADMINISTRATIVE MATTER          |
|2.  283                 |128.0000/PAY AND ALLOCANCES             |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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