IN THE CASE OF:	  

	BOARD DATE:	  10 June 2008

	DOCKET NUMBER:  AR20080001416 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect:

	a.  Either his active duty pay be computed and paid at the O-3E rate vice the O-3 rate or, in the alternative, his voluntary active duty orders be revoked and replaced with orders calling him to active duty in an involuntary status.

	b.  His adjusted ADOR (active duty date of rank) be corrected to allow him to compete for promotion to Major (MAJ/O-4) on the 2007 promotion board.

2.  The applicant states, in effect:

	a.  He served as a US Army Reserve (USAR) enlisted Soldier for 22 years and as a commissioned officer for 9 years before volunteering to enter active duty for 3 years in September 2006.

	b.  He was paid at the O-3E rate based upon having attained more than 1460 USAR retirement points computed under 10 U.S.C. 12732a(2).

	c.  He was never told that his pay rate would change when he volunteered to enter active duty in 2006.

	d.  He would have already been promoted to MAJ had he not come on active duty.

3.  The applicant provided the following additional documentary evidence in support of his application:

	a.  US Army Human Resources Command (HRC)-St. Louis, Missouri, Orders A-08-621211, dated 15 August 2006;

	b.  HRC-St Louis, Missouri Memorandum, dated 23 August 2001, promotion to CPT/O-3;

	c.  APRC Form 249-2-E (Chronological Statement of Retirement Points), dated 17 October 2006;

	d.  DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 15 May 2005; and

	e.  National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service).

	f.  Copy of a facsimile letter from the applicant to US Senator Arlen Specter with transmission date of 4 December 2007.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he performed enlisted service in the Army National Guard (ARNG) and USAR from 3 February 1976 through 14 September 1998.  During this time, he accumulated 20 adjustable years of service and 1,840 points towards non-regular (Reserve) retirement.

2.  On 15 September 1998, the applicant was appointed as a USAR First Lieutenant (1LT/O-2) in the Army Medical Department's (AMEDD) Medical Services Corps (MS).  On 25 July 2001, he was promoted to Captain (CPT/O-3).

3.  Orders 04-027-00250, Headquarters, 77th Regional Readiness Command (RRC), Fort Totten, New York, dated 27 January 2004, mobilized the applicant and his unit in support of Operation Iraqi Freedom.  The applicant served on active duty as a USAR CPT from 10 February 2004 through 15 May 2005.

4.  In 2006 the applicant volunteered to serve a 3-year active duty tour.  On 15 August 2006, HRC-St. Louis published Orders A-08-621211 ordering the applicant to active duty for a period of 3 years , effective 15 September 2006, under the authority of 10 U.S.C. 12301(d).  He was assigned to Eisenhower Army Medical Center, Fort Gordon, Georgia, as a Social Worker.  His orders further stated that he was appointed in the Reserve grade of CPT and would be placed on the Active Duty List (ADL) in the grade of CPT with his date of rank to be adjusted in accordance with Army Regulation 624-100.  The applicant reported early for active duty on 12 September 2006.

5.  Order Number 038-005, HRC-Alexandria, Virginia, dated 7 February 2007, provided the applicant with an adjusted ADOR to CPT of 12 September 2003.  This was in accordance with Army Regulation 600-8-29 (Officer Promotions) which replaced Army Regulation 624-100 (Promotion of Officers on Active Duty).

6.  Pay information received via electronic mail (email) from the Defense Military Pay Office, Fort McCoy, Wisconsin provides that, in accordance with the Department of Defense Financial Management Regulation, Volume 7, Chapter 1, certain USAR officers credited with 1,460 retirement points for enlisted service were entitled to a special, increased rate of basic pay for pay grades O-1E, O-2E, and O-3E.  The applicant was entitled to such pay, but did not receive it from 1 January 2002 through 14 September 2006.  In March 2007, he was paid the difference between O-3 and O-3E basic pay for the above period.  The email also provides that, effective with the applicant's voluntary entry on active duty on 15 September 2006 [sic], he was no longer authorized O-3E basic pay as he was an Active Guard Reserve (AGR) officer [sic].

7.  In a letter transmitted by facsimile on 4 December 2007, the applicant informed the Army Board for Correction of Military Records (ABCMR) he had, indeed received his back pay for the difference between O-3E and O-3 pay, but that he had not received the difference from 15 September 2006 to date.  He also stated that a Defense Finance and Accounting Service (DFAS) representative had informed him that the only way he could qualify for continuation of O-3E basic pay would be to change his active duty orders, to show he was involuntarily recalled to active duty.

8.  10 U.S.C. 12301(d) states, "At any time, an authority designated by the Secretary concerned may order a member of a reserve component under his jurisdiction to active duty, or retain him on active duty, with the consent of that member. However, a member of the Army National Guard of the United States or the Air National Guard of the United States may not be ordered to active duty under this subsection without the consent of the governor or other appropriate authority of the State concerned."

9.  Department of Defense Financial Management Regulation (DODFMR) is issued under the authority of DOD Instruction 7000.14.  It governs financial management by establishing and enforcing requirements, principles, standards, systems, procedures, and practices necessary to comply with financial management statutory and regulatory requirements applicable to the DOD.  Volume 7A governs military pay policy and procedures for active duty and Reserve pay.  Section 010103, paragraph A(6) provides that officers in the pay grade of O-1 through O-3 with more than 1,460 points computed under 10 U.S. Code, section 12732(a) for service as a warrant officer and/or enlisted member are entitled to the specific rate of pay (O-1E through O-3E) based on prior warrant or enlisted service.  This provision of the DOD FMR derives from 37 U.S. Code, section 203(d) (2) (B) which was added by Public Law 108-136, dated 23 November 2003.  This statue provides, in pertinent part, that the basic pay of a commissioned officer in the pay grade of O-1 through O-3 with a total of over four years of "service" shall be computed in the same manner as an officer who has been credited with over four years of active service as an enlisted member.  Service includes Reserve service for which an officer has been credited with at least 1,460 points for the purpose of 10 U.S. Code section 12732 (a) (2).  

10.  10 U.S. Code, section 12732 sets forth the computation for creditable years of service towards non-regular retired pay.  10 U.S. Code, section 12732(a) (2) includes in this calculation points earned for active service, drill periods, and Reserve membership.  The applicant earned 1,890 points during his enlisted service in the ARNG and USAR that qualify under this paragraph.

11.  Army Regulation 600-8-29 prescribes the policies and procedures for the promotion of commissioned officers on the ADL.  Paragraph 1-43 provides that, if an officer is ordered to active duty and placed on the ADL in the Reserve grade currently held (without a concurrent new original appointment), the ADOR will be the effective date of placement on the ADL backdated by either 3 years or the period calculated under other criteria, whichever is less.

12.  The Fiscal Year (FY) 2005 National Defense Authorization Act provided for the integration of RA and USAR officers on the Active Duty List (ADL) to a force of all RA officers.  As a result, new officer accessions as of 1 May 2005 were immediately appointed to the RA and eligible commissioned officers currently on the ADL were automatically converted to RA on/or after 11 November 2005.

DISCUSSION AND CONCLUSIONS:

1.  The applicant takes exception to his loss of basic pay and to the adjusted ADOR of 12 September 2003 provided him upon his voluntary accession on active duty on 12 September 2006.  He requests that his pay and his ADOR be corrected.  In a letter to his US Senator, he requests, in effect, that his voluntary active duty orders be revoked and replaced with orders calling him to active duty in an involuntary (USAR) status.

2.  Evidence of record shows that, with numerous years of enlisted service during which he amassed more than 1,460 retirement points, the applicant accepted a USAR appointment in the AMEDD and received the appropriate entry grade credit and date of rank as a 1LT upon his initial appointment on 15 September 1998.  He was subsequently selected for promotion to CPT/O-3 with a DOR and effective date of 25 July 2001.

3.  As a USAR officer with more than 1,460 retirement points as an enlisted Soldier, the applicant was entitled to increased commissioned officer pay at the O-2E and O-3E pay rate.  For a period of time from 1 January 2002 through 14 September 2006, he did not receive the proper pay.  This error was corrected in March 2007.

4.  The applicant earned 1,890 points for active service, drill periods, and Reserve membership.  This qualifies him under 37 U.S. Code, section 12732, and paragraph 010103A (6) of the DOD Financial Management Regulation to receive base pay as an O-3E during his service on active duty.

5.  With respect to the applicant's DOR, when he reported for active duty, HRC-Alexandria adjusted his ADOR from his reporting date of 12 September 2006.  In accordance with applicable Army regulations, the ADOR will be the effective date of placement on the ADL back-dated by either 3 years or the period calculated under other criteria (such as ADOR of commissioned grade in which previously served on active duty (other than for training); previous active duty grade or relative seniority; total active Federal commissioned service, etc.), whichever is less.  In the applicant's case, his ADOR was backdated by 3 years to 12 September 2003.  His ADOR as a CPT is correct.  In this respect, the applicant is in the same position as other USAR officers similarly situated whose ADORs were adjusted on recall to active duty.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__xxx___  __xxx___  __xxx___  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.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected as follows:

	a.  the Defense Finance and Accounting Service (DFAS) to conduct an audit of the applicant's pay record; and 

	b.  award the applicant base pay at the O-3E rate, pursuant to 37 U.S. Code, section 203 (d) (2) (B) and DOD FMR, effective on a date determined by the DFAS audit. 

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 the applicant's adjusted ADOR (active duty date of rank) be corrected to allow him to compete for promotion to Major (MAJ/O-4) on the 2007 promotion board.







							XXX
       _   _______   ___
       CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.


ABCMR Record of Proceedings (cont)                                         AR20080004354



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)                                         AR20080001416



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET, 2ND FLOOR
ARLINGTON, VA  22202-4508