RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 29 January 2008
DOCKET NUMBER: AR20070007987
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.
Ms. Catherine C. Mitrano
Director
Mr. Michael J. Fowler
Analyst
The following members, a quorum, were present:
Ms. Shirley L. Powell
Chairperson
Mr. Paul M. Smith
Member
Mr. Larry C. Bergquist
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 retirement pay be based upon his final pay as a Lieutenant Colonel (LTC). He further requests a review of heroism pay for officers and correction of his Survivor Benefit Plan (SBP) deduction. He indicated that his SBP had been corrected as of 15 February 2007.
2. The applicant states, in effect, that Soldiers who entered the service prior to
8 September 1980 receive final pay in accordance with (IAW) Title 10, U. S. Code, section 1406 and that Soldiers who entered after 8 September 1980 receive the average of high three IAW Title 10, U. S. Code, section 1407. He concurs with his retirement rank as a Major (MAJ) because he did not meet the three-year service requirement. The applicant feels his retirement pay should be calculated on his final pay as an LTC. He further states heroism pay is discriminatory towards officers and a review should be done.
3. The applicant provides a letter addressed to the Defense Finance and Accounting Service (DFAS), Retired Pay, dated 21 March 2007; a DFAS letter, dated 20 March 2007; a DD Form 2656 (Data for Payment of Retired Personnel), dated 30 January 2007; a 7-page extract from the Department of Defense Financial Management Regulation (DODFMR); and a 5-page extract from the United States Code online.
CONSIDERATION OF EVIDENCE:
1. The applicant had prior enlisted service. He was appointed as a Second Lieutenant on 6 June 1980. On 31 July 1983, he entered active duty. He was promoted to the rank of MAJ on 1 August 1994. He was promoted to the rank of LTC on 29 September 2006.
2. On 31 January 2007, the applicant retired under the provisions of Title 10, U. S. Code, sections 1370 and 3911. He was placed on the retirement list on
1 February 2007 in the rank of MAJ.
3. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty), with the ending period 31 January 2007 shows he was awarded the Soldier's Medal.
4. Title 10, U. S. Code, section 1406(c) states that the retired pay base of any person entitled to retired pay under section 3911 is computed based upon the
monthly basic pay of the member's retired grade. The rate of the basic pay to be used is the rate applicable on the date of the member's retirement.
5. Title 10, U. S. Code, chapter 369 governs retired grades. Section 3961 states that the retired grade of a regular commissioned officer who retires other than for physical disability and the retired grade of a reserve commissioned officer of the Army who retires other than for physical disability or for nonregular service under chapter 1223 of this title, is determined under section 1370 of this title.
6. Title 10, U. S. Code, section 1370(a)(1) provides that a commissioned officer who retires under any provision of law except chapters 61 (disability) or 1223 (non-regular service) shall, except as provided in paragraph (2), be retired in the highest grade in which he served on active duty satisfactorily for not less than six months. Section 1370(a)(2)(A) provides that, in order to be eligible for voluntary retirement under any provision of this title in a grade above major, a commissioned officer of the Army must have served on active duty in that grade for not less than three years.
7. The DODFMR provides that enlisted members retired after the completion of 20 but less than 30 years of active service are eligible to receive 10 percent additional retired or retainer pay if credited with extraordinary heroism in the line of duty. The Secretary of the Military Department concerned has the authority to grant this additional pay.
8. Title 10, U. S. Code, section 1552 states the Secretary of a military department may correct any military record of the Secretarys department when the Secretary considers it necessary to correct an error or remove an injustice.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that his retirement pay should be based upon his final pay as a LTC. Evidence of record shows that he was promoted to LTC on
29 September 2006 and that he was placed on the retired list 1 February 2007 in the rank of MAJ. The applicant acknowledged that he did not meet the criteria to retire in the rank as a LTC. However, Title 10, U. S. Code, section 1406(c) is clear. His retirement pay base is computed based on the monthly basic pay of his retired grade. There are no exceptions listed in the statute.
2. The applicant requested that a review of heroism pay for officers be made. However, the review of regulatory and statutory requirements is not within the purview of this Board.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
___SLP _ __PMS __ __LCB__ 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.
___Shirley L. Powell _
CHAIRPERSON
INDEX
CASE ID
AR20070007987
SUFFIX
RECON
DATE BOARDED
29 JANUARY 2008
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION
DENY
REVIEW AUTHORITY
MR. SHATZER
ISSUES 1.
137.0100.0000
2.
102.0200.0000
3.
4.
5.
6.
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