IN THE CASE OF:	

		BOARD DATE:	  4 March 2010

		DOCKET NUMBER:  AR20090008252 


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 the basic monthly pay amount used to calculate his gross monthly retirement pay.

2.  The applicant states, in effect, that when his retirement pay was calculated by the Defense Finance and Accounting Service (DFAS) they incorrectly based their calculations on the basic pay of an E-4 with greater than six years of service instead of the basic pay of an E-7 with greater than six years of service.  As a result, he states, that he is entitled to back pay for the difference between the Department of Veterans Affairs (VA) payments he has received and his correctly calculated retirement pay.

3.  The applicant provides a 2006 military pay chart, a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), four letters to the applicant from DFAS, three retiree account statements, and a copy of his retirement orders in support of his 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 enlisted in the Regular Army on 3 February 1999 and served in military occupational specialty (MOS) 96B (Intelligence Analyst).  

3.  The applicant's records contain a copy of a DD Form 214, with an effective date of 2 August 2006, which shows he was placed on the Temporary Disability Retired List (TDRL) in the rank and grade of sergeant first class (SFC/E7).  This document also shows that the applicant's date of rank was 2 August 2006 and that he served a total of 7 years and 6 months of active service.

4.  The applicant's records contain a copy of Headquarters, Fort Meyer Military Community Orders 174-0006, dated 23 June 2006, which direct that the applicant be placed on the TDRL effective 3 August 2006 in the grade of specialist (SPC/E4) with a percentage of disability of 40 percent.

5.  The applicant's records contain a copy of United States Army Physical Disability Agency Orders D179-16, dated 27 June 2008.  This document removed the applicant from the TDRL and retired him from the Army in the rank and grade of SFC/E7 due to his permanent physical disability with a physical disability percentage of 100 percent.

6.  The applicant provides a DFAS letter, dated 15 September 2008, which essentially states that as a result of his transfer from the TDRL to the Permanent Disability Retired List (PDRL) he was entitled to receive retired pay computed by one of two methods.  The letter further shows that the method most advantageous to the applicant determined he was entitled to gross retirement pay in the amount of $1557, effective 28 June 2008.  The letter notifies the applicant that if he does not concur with the method used to adjust his pay he must notify DFAS within 45 days of his desired pay computation method and the amount of retired pay the applicant understands he will receive.  There is no documentation in the applicant's records nor does he provide any evidence to show he made such notification to DFAS.

7.  The applicant provides three retiree account statements which show the following:

	a.  effective 12 September 2006, his gross pay for retirement was $1,009 and a net pay amount of $947.80.

	b.  effective 3 July 2008, his new gross pay for retirement was $1557 and that no pay was due.

	c.  effective 2 December 2008, his new gross pay for retirement was $1647 and a VA waiver of $1904.  As a result, he received no net pay.

8.  The DFAS website at:  http://www.defenselink.mil/dfas provides that a Soldier found to be physically unfit for further military service and who meets certain standards specified by law will be granted a disability retirement.  The disability retirement may be temporary or permanent.  The website further provides that the amount of disability retired pay is determined by one of two methods.  The first method is to multiply the base pay or average of highest 36 months of active duty pay at the time of retirement, by the percentage of disability which has been assigned.  Members who entered the service September 8, 1980 or later must use the highest average formula.  This computation is sometimes referred to as “Method A."  The second method is to multiply only the years of active service at the time of retirement by 2.5 percent by the base pay or average of the highest 36 months of active duty pay at the time of retirement.  This computation is sometimes referred to as "Method B."  DFAS establishes the retiree's account using the method that results in the greatest amount of retired pay.  If the retiree desires that another method be used, he or she may request (in writing) that the other method be used.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his disability retirement compensation should be properly calculated based on the basic pay of an E-7 with greater than six years of service.  However, the evidence of record shows that the applicant first entered the Army after 8 September 1980.  Therefore, the High-3 Year Average Retirement System applies to the applicant for the purpose of calculating his monthly basic pay while on the TDRL and PDRL.  

2.  The orders that directed the applicant be placed on the TDRL showed the retired grade of rank as SPC/E4 instead of SFC/E7.  As a result, it appears that in establishing the applicant's basic monthly pay for retirement, DFAS used the grade of SPC/E4 instead of the applicant's average of the highest 36 months of active duty pay.  As a result, it would be appropriate to correct the applicant's record to show he was placed on the TDRL on 3 August 2006 in the grade of SFC/E7 and to recalculate the applicant's basic monthly pay for retirement.




3.  Further, as a result of the apparent miscalculation in establishing the applicant's basic month pay for retirement when he was placed on the TDRL, it would also be appropriate to recalculate the applicant's basic monthly pay when he was placed on the PDRL on 27 June 2008.

4.  The evidence of record shows that the applicant is currently receiving monthly compensation from the VA as a result of his disability.  As a result, if the recalculation of his basic monthly military retired pay determines an amount which exceeds the VA compensation he receives, the applicant would be entitled to the difference in the form of back pay.  If the recalculated amount does not exceed his VA compensation, the applicant would not be entitled to any back pay.

BOARD VOTE:

___X____  ___X___  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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: 

	a.  showing the applicant was placed on the TDRL on 3 August 2006 in the grade of SFC/E7;

	b.  determining his basic monthly pay for retirement when he was placed on the TDRL and PDRL, utilizing the applicant's average of the highest 36 months of active duty pay; and 






	c.  conducting an audit of the applicant's pay record to determine any resulting back pay that may be due him as a result of the above recalculation, less any VA compensation he may be receiving.



      _______ _   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)                                         AR20090008252



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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