IN THE CASE OF:	  

		BOARD DATE:	        29 JANUARY 2009

		DOCKET NUMBER:  AR20080016927 


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 that he be advanced on the Retired List to the pay grade of O-3E.

2.  The applicant states that he was advanced to the pay grade of O-3 on the Retired List but should have been advanced to the pay grade of O-3E based on his prior enlisted and warrant officer service.

3.  The applicant provides a copy of the letter notifying him of his advancement on the Retired List, a copy of his Retiree Account Statement, a copy of his Military Retiree Identification Card, a letter explaining his application, a copy of his DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge and Certificate of Release or Discharge from Active Duty), a copy of a DA Form 3713 (Data for Retired Pay), and a copy of his Certificate of Retirement as a captain.

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 Air Force on 2 September 1954 and served until he was honorably released from active duty (REFRAD) on 1 September 1958.  He had served exactly 4 years of active enlisted service.

3.  He was commissioned as an Air Force Reserve second lieutenant and served on active duty from 31 October 1965 to 7 July 1966.  He was commissioned as a U.S. Army Reserve (USAR) second lieutenant and entered active duty on 8 July 1966.  He served as a rotary wing aviator until he was honorably released from active duty in the rank of captain on 10 August 1972 due to a reduction in strength.

4.  On 13 October 1972, he was appointed as a USAR chief warrant officer two.  He was ordered to active duty on 15 November 1976 and served on active duty as a Regular Army aviator until he was honorably released from active duty as a chief warrant officer three on 31 October 1985 for retirement.  He was transferred to the Retired List effective 1 November 1985.  He had served 20 years, 7 months, and 28 days of total active service.

5.  On 3 March 1995, the applicant was advanced to the rank of captain/O-3 on the Retired List, the highest active duty grade he satisfactorily held.  However, information received from the Defense Finance and Accounting Service indicates that the applicant is still being paid in the rank of W-3.

6.  Department of Defense Military Pay and Allowances Entitlements Manual provides in paragraph 10105a(3) that effective 1 October 1983, commissioned officers in pay grades O-1, O-2, or O-3 are entitled to the special rate of pay for O-1E, O-2E, or O-3E if the officer has a combined total of over 4 years of active service (4 years and 1 day or more) as a warrant officer and enlisted member.

7.  Title 37, U. S. Code, section 203(d)(1) states the basic pay of a commissioned officer who is in pay grade O-1, O-2, or O-3 and who is credited with a total of over four years’ service described in paragraph (2) shall be computed in the same manner as the basic pay of a commissioned officer in the same pay grade who as been credited with over four years active service as an enlisted member. Section 203(d)(2) states service to be taken into account for purposes of computing basic pay under paragraph (I) is as follows:

      (A) Active service as a warrant officer or as a warrant officer and an enlisted member, [or]
      (B) Service as a warrant officer, as an enlisted member, or as a warrant officer and an enlisted member, for which at least 1,460 points have been credited to the officer for the purposes of section 12732(a(2) of Title 10.

8.  Title 10, U.S. Code, section 3964, provides, in pertinent part, that retired personnel may be advanced in grade to the highest grade satisfactorily held while on active duty, as determined by the Secretary of the Army, upon completion of 30 years of service.  This service may consist of combined active service and service in the USAR Control Group (Retired), and the Army Grade Determination Board is the agency that reviews the records and/or applications for advancement on the Retired List in behalf of the Secretary for those who have attained 30 years of service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should have been advanced on the Retired List to the pay grade of O-3E has been noted and found to lack merit.

2.  At the time the applicant served on active duty as a captain/O-3, he had exactly 4 years of active enlisted service, which was 1 day short of the requirement to be paid in an O-3E status.

3.  While it is noted that he had subsequent warrant officer service after he was REFRAD as a captain/O-3, that service cannot be combined with his enlisted service retroactively for the purpose of qualifying him for O-3E status.

4.  Since he did not have over four years of enlisted service at the time he was commissioned, he was never paid as an O-1 E, O-2E, or O-3E.  Since he was never paid as an O-3E while on active duty, he is not eligible to receive retired pay at the rate of O-3E.

5.  Accordingly, the highest grade he served on active duty was captain O-3.  Therefore, since he has failed to show through the evidence submitted and the evidence of record that there was an error or injustice in the computation of his service and his advancement on the Retired List, there appears to be no basis to grant his request.

6.  However, in the event that the applicant was not advanced on the Retired List to the rank of CPT/O-3, effective 3 March 1995, by the DFAS, he will be entitled to all back retired pay due him from that date.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ___X_____  ___X_____  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 by showing that he was advanced to the rank of CPT/O-3 on the Retired List effective 3 March 1995 and that he is entitled to all back retired pay in that pay grade from that date. 

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 advancement on the Retired List to the rank of CPT/O-3E.  




      _________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)                                         AR20080016927



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ABCMR Record of Proceedings (cont)                                         AR20080016927



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