IN THE CASE OF:
BOARD DATE: 24 September 2009
DOCKET NUMBER: AR20080017893
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 records be corrected to reflect that he has at least 29 years, 1 month, and 9 days of service for percentage purposes. He also requests that he be paid all back pay and allowances that flow from this correction.
2. The applicant states that his computation of service for retirement purposes incorrectly reflects that he completed 26 years of service when in fact he has over 29 years of service. Accordingly, his retired pay is incorrect and he is not being paid his full entitlement.
3. The applicant provides a DA Form 7301-R (Officer Service Computation for Retirement), a copy of orders releasing him from active duty, and a copy of his Summary of Retired Pay Account.
CONSIDERATION OF EVIDENCE:
1. The applicant's official records, though somewhat incomplete, show that he was commissioned as a United States Army Reserve (USAR) second lieutenant in the Judge Advocate General's (JAG) Corps on 7 June 1969.
2. He was ordered to active duty on 8 October 1972 and was promoted to the rank of captain on 23 October 1972. He remained on active duty until he was honorably released from active duty (REFRAD) on 30 October 1977 and was transferred to the USAR Control Group (Reinforcement).
3. On 2 May 1987, he was ordered to active duty in the Active Guard Reserve (AGR) Program. He continued to serve in the AGR Program until he was retired on 30 November 2002 and he was transferred to the Retired List in the rank of colonel effective 1 December 2002. He was credited with 23 years, 4 months, and 4 days of service for percentage purposes at that time.
4. He was immediately ordered to active duty on 1 December 2002 and served as a retiree recall until he was honorably released from active duty on 30 June 2008 after having served 5 years and 7 months of additional active duty.
5. The Summary of Retired Pay Account provided by the applicant is dated 9 July 2008 and indicates his service for percentage is based on 26 years,
1 month, and 21 days of service.
6. In the processing of this case a staff advisory opinion was obtained from the Human Resources Command - Alexandria (HRC-Alex) in the form of a Statement of Service which indicates the applicant should be credited with 28 years, 1 month, and 23 days of total service for percentage purposes. The statement of service reflects the type of credit awarded for specific periods of service.
7. The statement of service was provided to the applicant for comment. He responded to the effect that he did not concur with the statement of service in that the statement of service was incorrect because it did not grant him credit for the 332 days of active duty during the period 1 October 1977 to 2 May 1987 that he performed while in the USAR prior to re-entering active duty. He provided a copy of an ARPC Form 249-E (Chronological Statement of Retirement Points) covering his service from 17 June 1969 to 30 November 2002.
8. A review of the Statement of Service provided by HRC-Alex reflects that the applicant was only credited with 79 days of active duty service during the period 1 October 1977 to 2 May 1987. The Statement of Service only credits him with 28 years, 1 month, and 23 days of total service for percentage purposes; however, when he originally retired in November 2002, he was credited with 23 years, 4 months, and 4 days of service for percentage purposes and he subsequently served an additional 5 years and 7 months of active service as a retiree recall, which appears to add up to at least 28 years, 11 months, and 4 days of total service for percentage purposes.
DISCUSSION AND CONCLUSIONS:
1. While the Board does not have sufficient information to determine the exact of amount of service the applicant should be credited with, it appears on the surface that his service is incorrectly calculated and that his contentions have some merit.
2. It also appears that at the time the applicant was released from active duty back to the Retired Control Group a readjustment of his service was not properly conducted to assist the Defense Finance and Accounting Service in adjusting his retired pay based on the 5 years and 7 months of service he performed after his initial retirement.
3. Although the Board is not the proper agency to audit the applicant's service or pay records, it does have the authority to direct that a comprehensive review of his records be conducted and a Statement of Service and other appropriate forms be prepared to properly credit the applicant with the service he performed and effect the necessary changes to his Retired Pay.
4. Accordingly, HRC-Alex should contact the applicant for any additional evidence he may need to provide for the review of his records and preparation of the necessary forms.
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:
a. directing HRC-Alex to coordinate with HRC-St. Louis to conduct a thorough audit of the applicant's official records and prepare a Statement of Service and any forms necessary to effect the necessary changes to his retired pay; and
b. coordinating the corrections with the applicant prior to finalization to affirm the accuracy of the corrections, and paying the applicant all back pay and allowances that flow from any changes that occur.
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 Board directing a change to his service computation to reflect 29 years, 1 month, and 9 days of service for percentage purposes.
_______ _ 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.
ABCMR Record of Proceedings (cont) AR20080017893
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ABCMR Record of Proceedings (cont) AR20080017893
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