IN THE CASE OF:
BOARD DATE:
DOCKET NUMBER: AR20080008251
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, that his retired pay status be changed from O-2 to O-2E.
2. The applicant states, in effect, that prior to his direct commission on 5 January 1981, he served as an enlisted member from 9 December 1963.
3. The applicant provides a copy of his Arizona Army National Guard (AZARNG) Retirement Point History Statement and several documents from his MPRJ (Military Personnel Records Jacket) in support of his request.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant's military records show he was appointed in the AZARNG as a first lieutenant (1LT/O2), on 5 January 1981, with prior enlisted service from 9 December 1963 to 4 January 1981 (17 years).
3. On 24 February 1984, the Department of the Army and the Air Force, National Guard Bureau, notified the applicant that he had completed the required years of service to be eligible for retired pay upon reaching age 60 (20-Year Letter).
4. The applicant was considered and not selected for promotion to captain by the 1985 and 1986 Reserve Component Selection Board (RCSB). As a result of his second promotion nonselection, he was required to be separated from the Army Reserve.
5. The applicant was separated from the AZARNG on 14 May 1986, in the rank of and pay grade of 1LT/O-2. He was transferred to the United States Army Reserve (USAR) Control Group (Retired).
6. On 6 July 2007, the applicant completed a DD Form 108 (Application for Retied Pay Benefits). The applicant indicated his highest grade held as O-2E.
7. The applicant's Retirement Points History Statement, dated 6 July 2007, shows that he completed 22 years, 5 months, and 6 days of qualifying service for retired pay. It also shows the he had a total of 997 active duty points and his highest grade held was O-2E.
8. Information provided by the DFAS (Defense Finance and Accounting) Liaison revealed that the applicant is being paid retired pay as an O-2.
9. Department of Defense (DOD) Financial Management Regulation, Volume 7A, Chapter 1, Paragraph 010103 pertains to active enlisted and/or warrant officer service for members in basic pay grade O-1E, O-2E, or O-3E. Paragraph 010103(A)1 states that commissioned officers with over 4 years of prior active service as an enlisted member, warrant officer, or combined service in both grades are entitled to count such service for purposes of computing basic pay for longevity purposes. Such prior service includes all active service, in either the Regular or Reserve Component or both (i.e., active duty for training in enlisted or warrant officer status, annual Reserve training duty, and full time National Guard duty). Service on active duty or active duty for training for at least 4 years and 1 day satisfies the over 4 years of service requirement under this section.
10. Subparagraph 010103 (A)2 pertains to creditable prior enlisted service. Effective 20 May 1958, commissioned officers in pay grades O-1, O-2, or O-3 who are credited with over 4 years (i.e., at least 4 years and 1 day) of prior active service as an enlisted member are entitled to the special rate of basic pay for pay grade O-1E, O-2E, or O-3E.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows that prior to his appointment in the AZARNG on 5 January 1981, the applicant had completed over 17 years of enlisted service. He continued to serve as a commission officer until he was honorably separated on 14 May 1986 and was transferred to the Retired Reserve. He had a total of 997 active duty points. He applied for retired pay benefits with the highest grade held as O-2E.
2. A review of his Retirement Points History Statement failed to show that he was credited with the required 4 years of Active Federal Service that were needed in order to qualify for pay credit for his prior enlisted service.
3. According to regulation, commissioned officers in pay grades O-1, O-2, or O-3 who were credited with over 4 years of prior active enlisted service were entitled to the special rate of basic pay for pay grade O-1E, O-2E, or O-3E. Therefore, the evidence presented clearly shows that the applicant did not complete the required years of service for special pay credit as a commissioned officer with prior enlisted service. Therefore, he is not entitled to a change in his retired pay status from O-2 to O-2E
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
____x___ ___x____ ___x____ 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.
_________x______________
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.
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