RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  14 November 2007
	DOCKET NUMBER:  AR20070009381 


	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

Mrs. Nancy L. Amos

Analyst

The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Ms. Carmen Duncan

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 service percentage multiplier for his retired pay be based upon 19 years, 4 months, and 14 days of service.

2.  The applicant states that records at the Defense Finance and Accounting Service (DFAS) are in error in that they indicate he served 17 years, 11 months, and 6 days.  However, his actual years of service are 19 years, 4 months, and  14 days.  

3.  The applicant provides a Chronological Statement of Retirement Points, dated 19 April 2007, with a Retirement Points Accounting System (RPAS) explanation sheet; a National Guard Bureau (NGB) Form 23 (Army National Guard Retirement Credits Record); a Reserve Retirement Credit Report; a U. S. Marine Corps Reserve enlistment contract; discharge orders, dated 13 September 1971; an NGB Form 22 (Report of Separation and Record of Service); a DD Form    214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 30 June 1969; two DD Forms 214 (Report of Separation from Active Duty), for the periods ending 20 June 1974 and 6 April 1977; and a DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 26 August 1986.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army on 24 August 1966.  He was released from active duty on 30 June 1969 and transferred to the U. S. Army Reserve (USAR).  He was discharged from the USAR on 19 January 1970 and enlisted in the U. S. Marine Corps Reserve (USMCR).  He was discharged from 

the USMCR on 5 October 1970.  He enlisted in the Army National Guard (ARNG) on 6 October 1970.  He was discharged from the ARNG on 26 July 1971.  He enlisted in the Regular Army on 27 July 1971 and remained on continuous active duty until his physical disability retirement on 26 August 1986 with a 30 percent disability rating.  He was placed on the retired list on 27 August 1986.

3.  The applicant’s DD Form 214 for the period ending 26 August 1986 shows he completed 9 years, 4 months, and 20 days of active duty for the period covered by that DD Form 214 and 8 years, 6 months, and 16 days of prior active duty for a total of 17 years, 11 months, and 6 days of active duty.

4.  The applicant provided a Chronological Statement of Retirement Points, dated 19 April 2007, that shows he had 19 years, 4 months, and 14 days of qualifying service for a Reserve retirement.  This statement shows that during his service in the USAR he performed no active duty; during his service in the USMCR he performed 16 days of active duty; and during his service in the ARNG he performed 15 days of active duty.  During his time in the USMCR and the ARNG he earned 50 or more retirement points per retirement year, sufficient to qualify as a “good” retirement year.

5.  An updated Chronological Statement of Retirement Points, dated 7 November 2007, shows the applicant had 19 years, 5 months, and 14 days of qualifying service for a Reserve retirement.

6.  Title 10, U. S. Code, section 1401 (Computation of retired pay) states in pertinent part that the monthly retired pay of a person retired under section 1201 (Physical disability retirement for Regulars and members on active duty for more than 30 days) is calculated by the retired pay base as computed under section 1406(b).  

7.  Title 10, U. S. Code, section 1406(b) (retired pay base for members who first became members before 8 September 1980 and who are entitled to retired pay under section 1201) states the retired pay base is the monthly basic pay of the grade to which the member is entitled under section 1372 or to which he was entitled on the day before retirement, whichever is higher.

8.  Title 10, U. S. Code, section 1401 further states that the retired pay base is multiplied by 2 and 1/2 percent of the years of service credited to the member under section 1208 or the percentage of disability on the date when retired.  Section 1208 states a member of a Regular component (retired for disability) 

shall be credited with the service that he is considered to have for the purpose of separation, discharge, or retirement for length of service or the sum of his active service as a member of the armed forces, whichever is greater.

9.  Title 10, section 101(d)(3) defines “active service” to mean service on active duty or full-time National Guard duty.

DISCUSSION AND CONCLUSIONS:

1.  The applicant appears to be confusing two concepts – what his qualifying years of service would have been for a Reserve retirement (had he been otherwise eligible for a Reserve retirement, which he was not) and the retired pay base/multiplier for calculating the retired pay of a Regular Army member who retired for disability (which he was/did).  It is noted that two of the years that would have qualified for a Reserve retirement showed that the applicant completed only 31 days of active duty during that same period.

2.  The evidence of record shows that the applicant served 17 years, 11 months, and 6 days of active duty.  His retired pay base is multiplied by 2 and 1/2 percent of the years of service credited to him under section 1208 (since it would have been greater than his 30 percent disability rating).  Section 1208 states he would be credited with the service that he is considered to have for the purpose of separation, discharge, or retirement for length of service (he would have had    17 years, 11 months and 6 days of service towards a length of service retirement) or the sum of his active service as a member of the armed forces.  “Active service” is also defined as active duty.  The evidence of record shows he completed a total of 17 years, 11 months, and 6 days of active duty.  

3.  Based on the above, it appears that DFAS properly calculated his retired pay based upon 17 years, 11 months, and 6 days of active service.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__lds___  __cd____  __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.




__Linda D. Simmons____
          CHAIRPERSON




INDEX

CASE ID
AR20070009381
SUFFIX

RECON

DATE BOARDED
20071114
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
128.00
2.

3.

4.

5.

6.