IN THE CASE OF:	

		BOARD DATE:	 19 March 2009 

		DOCKET NUMBER:  AR20080018221 


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, correction of his retirement orders to show 22 years, 6 months, and 1 day for basic pay purposes and that he be given all back pay that this correction will necessitate.

2.  The applicant states that his DD Form 214 (Certificate of Release or Discharge from Active Duty) correctly shows he served 22 years and 13 days of active duty and 5 months and 17 days of inactive duty.  He further states that his application for voluntary retirement correctly shows he served for 22 years, 
6 months, and 1 day; however, the retirement orders were completed incorrectly showing 21 years, 2 months, and 15 days of service for basic pay.

3.  The applicant provides his retirement orders, DD Form 214, DA Form 2339 (Application for Voluntary Retirement), four DD Forms 4 (Enlistment/
Reenlistment Document – Armed Forces of the United States) in support of this application.

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's records show he enlisted in the U.S. Army Reserve (USAR) under the Delayed Entry Program (DEP) on 1 March 1983 for a period of 8 years.  On 17 August 1983 he was discharged from the DEP and enlisted in the Regular Army on 18 August 1983 for a period of 4 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 63A (M1 Abrams Tank System Maintainer).  The highest rank he attained while serving on active duty was sergeant first class (SFC)/pay grade E-7.

3.  The applicant continued to serve on active duty through subsequent reenlistments.  On 25 October 2004, the applicant submitted a DA Form 2339 requesting voluntary retirement with a requested retirement date of 1 September 2005.  This form shows in item 18 (Total Service for Basic Pay Purposes) the entry 22 years, 6 months, and 1 day.

4.  The applicant was honorably released from active duty on 31 August 2005 by reason of sufficient service for retirement.  He was placed on the Retired List on the following day.  Item 12c (Net Active Service this Period) shows the entry 
22 years and 13 days and item 12e (Total Prior Inactive Service) shows the entry
5 months and 17 days, for a total of 22 years, 6 months, and 1 day of service.

5.  Department of the Army, Hanau Transition Center, Orders 131-03, dated 
11 May 2005, released the applicant from active duty and placed him on the retired list effective 1 September 2005.  The orders show he had 22 years and 14 days for voluntary retirement purposes and 21 years, 2 months, and 15 days for basic pay purposes.  These orders also show 3 March 1983 as the date he initially entered military service.

6.  DoD Financial Management Regulation, Volume 7A, Chapter 1, Paragraph 10101, states, in pertinent part, that service as an enlisted member in a Reserve Component, including time served under the DEP before beginning active duty, provided the Reserve enlistment was entered into before 1 January 1985, is creditable for basic pay purposes.




DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his retirement orders should be amended to show 22 years, 6 months, and 1 day for basic pay purposes.  The evidence of record confirms the applicant completed 22 years and 13 days of net active serve.  It also shows he was in the DEP for 5 months and 17 days prior to 1 January 1985.  As such, his DEP time was creditable for pay purposes and should be added to his net active service for basic pay purposes.  Therefore, he is entitled to have his retirement order amended to accurately reflect his total service for pay purposes as 22 years, 6 months, and 1 day instead of the 21 years, 2 months, and 15 days as currently shown.

2.  Based on the applicant's entitlement to the basic pay correction, he is entitled to any difference in pay that the correction will necessitate.

3.  Additionally, although not requested by the applicant, it is recommended that the applicant's retirement orders be further amended to show his date initially entered military service as 1 March 1983 instead of the 3 March 1983 date that is currently shown.

BOARD VOTE:

___X___  ____X__  ____X_ _     GRANT FULL RELIEF 
 
________  ________  ________  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 relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending the applicant's retirement orders (Orders 131-03, dated 11 May 2005) to show:

	a.  Date initially entered military service:  1 March 1983, and

	b.  Basic pay:  22 years, 6 months, and 1 day.


2.  The Board further recommends that based on the above corrections, the Defense Finance and Accounting Service (DFAS) should audit the applicant's retired pay account and pay him the difference in retired pay as a result of these corrections.



      ______________________
       	   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)                                         AR20080018221



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ABCMR Record of Proceedings (cont)                                         AR20080018221



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