BOARD DATE:	  14 October 2009

		DOCKET NUMBER:  AR20090008465 


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 correction of his records to show he retired in the rank of captain (CPT)/pay grade O-3.

2.  The applicant states he served on active duty in the Regular Army (RA) in an enlisted status from 7 July 1967 to 8 February 1970.  He also served on active duty as a commissioned officer in the U.S. Marine Corps (USMC) from 1974 to 1982 and held the rank of CPT (O-3) from 1979 to 1982.  He then served in the Army National Guard (ARNG) as a warrant officer from 13 March 1984 to
31 March 2005.

   a.  He states he was retired in the rank of chief warrant officer three (CW3)/ pay grade W-3.

   b.  He states that the highest military pay grade he held was O-3 with at least 4 years and 1 day of active duty service (or more than 1,460 retirement points) and a total of 2,920 points for retired pay as an enlisted/warrant officer.

3.  The applicant provides, in support of his application, a copy of his application for retired pay benefits and ARNG Retirement Points History Statement.

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.  A DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows the applicant entered active duty in the RA on 7 July 1967, he was honorably released from active duty on 7 February 1970, and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement).  At the time he had completed 2 years, 7 months, and 1 day of net active service.  This document also shows the applicant's date of birth is 3 March 1948.

3.  Headquarters, Office of The Adjutant General, U.S. Army Reserve Components Personnel and Administration Center, St. Louis, MO, Letter Orders Number 06-1137015, dated 20 June 1973, show the applicant was honorably discharged from the USAR Control Group (Standby) effective 1 July 1973.

4.  A DD Form 214 (Certificate of Release or Discharge from Active Duty), along with a DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty), dated 2 December 1983, shows the applicant entered active duty in the USMC on 8 November 1974 and he was honorably discharged on 7 May 1982.  At the time he had completed 7 years and 6 months of net active service; 2 years, 10 months, and 29 days of total prior active service; and 3 years, 4 months, and 24 days of total prior inactive service.  Item 4a (Grade, Rate or Rank) shows the entry "Captain"; Item 4b (Pay Grade) shows the entry "o3"; and Item 12 (Record of Service), block h (Effective Date of Pay Grade) shows the entry "79 07 01" (i.e., 1 July 1979). 

5.  State of Hawaii, Department of Defense, Office of The Adjutant General, Honolulu, HI, Orders 60-2 ARNG, dated 13 March 1984, show the applicant was appointed as a warrant officer in the ARNG in the grade of warrant officer one (WO1)/pay grade W-1 and extended temporary Federal recognition effective 13 March 1984.

6.  State of Hawaii, Department of Defense, Office of The Adjutant General, Honolulu, HI, memorandum, dated 13 February 1996, notified the applicant that having completed the required years of service, he would be eligible for retired pay upon application at age 60 in accordance with the provisions of Title 10, U.S. Code, chapter 67.
7.  State of Hawaii, Department of Defense, Office of The Adjutant General, Honolulu, HI, Orders 168-015, dated 12 August 1996, show the applicant was promoted to CW3/W-3 effective 12 August 1996.

8.  Headquarters, Departments of the Army and the Air Force, National Guard Bureau, Arlington, VA, memorandum, dated 25 April 2001, subject:  Promotion as a Reserve Commissioned Warrant Officer of the Army, shows the applicant was promoted to CW3 and authorized pay and allowances in the grade of W-3 effective 9 April 2001.

9.  A National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows the applicant was honorably separated from the ARNG of the United States and Alaska ARNG on 31 March 2005 based on completion of
30 years of service and transferred to the USAR Control Group (Retired Reserve).  At the time he had completed 2 years and 5 months of net active service this period; 22 years and 10 days of prior Reserve Component service; 10 years, 1 month, and 1 day of prior active Federal service; 34 years, 6 months, and 11 days of total service for pay; and 31 years, 4 months, and 29 days of total service for retired pay.  Item 5a (Rank) shows the entry "CW3"; Item 5b (Pay Grade) shows the entry "W3"; and Item 6 (Date of Rank) shows the entry
"01 04 09" (i.e., 9 April 2001). 

10.  In support of his application, the applicant provides the following documents.

   a.  His Application for Retired Pay Benefits, dated 15 May 2007, that shows he requested his retired pay to begin on 3 March 2008 and that the highest military pay grade he held was "O3."

	b.  His ARNG Retirement Points History Statement, dated 1 November 2005, that shows his rank as CW3; he was granted 4,312 active duty points, 6,168 total career points, and 5,744 total points for retired pay; and credited with 31 years,
4 months, and 29 days of creditable service for retired pay.  This document also shows the highest grade the applicant held was "O3."

11.  In connection with the processing of this case, the Military Pay Operations - Cleveland, Defense Finance and Accounting Service (DFAS), Cleveland, Ohio, was asked to verify the pay grade for which the applicant is receiving retired pay. A DFAS official confirmed that the applicant is receiving retired pay based upon pay grade W-3 effective 3 March 2008.

12.  Title 10, U.S. Code, Section 1371 (Warrant officers:  general rule), provides that unless entitled to a higher retired grade under some other provision of law, a warrant officer retires, as determined by the Secretary concerned, in the permanent regular or reserve warrant officer grade, if any, that he held on the day before the date of his retirement, or in any higher warrant officer grade in which he served on active duty satisfactorily, as determined by the Secretary, for a period of more than 30 days.

13.  Title 10, U.S. Code, Section 1370 (Commissioned officers:  general rule), provides rules for retirement in the highest grade held.  Paragraph (d) governs Reserve officers and provides:

   a.  Unless entitled to a higher grade, or to credit for satisfactory service in a higher grade, under some other provision of law, a person who is entitled to retired pay under chapter 1223 of this title shall upon application under section 12731 of this title be credited with satisfactory service in the highest grade in which that person served satisfactorily at any time in the armed forces, as determined by the Secretary concerned in accordance with this subsection.

	b.  In order to be credited with satisfactory service in an officer grade (other than a warrant officer grade) below the grade of lieutenant colonel or commander, a person covered by paragraph (1) must have served satisfactorily in that grade (as determined by the Secretary of the military department concerned) as a reserve commissioned officer in an active status, or in a retired status on active duty, for not less than six months.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show he was placed on the retired list in the rank of CPT/O-3 and authorized retired pay in the grade of O-3 effective 3 March 2008.

2.  The applicant served on active duty as a commissioned officer in the USMC from 8 November 1974 to 7 May 1982, he completed 7 years and 6 months of honorable active service during this period, and he satisfactorily held the rank of CPT/O-3 from 1 July 1979 through the date he was discharged.

3.  The applicant was honorably separated from the ARNG on 31 March 2005 after completing more than 30 years of creditable service and he was transferred to the USAR (Retired Reserve) in the rank of CW3/W-3 effective 1 April 2005.

4.  Records show the applicant applied for retired pay based on the highest military pay grade he held (i.e., O-3) to begin effective the date of attaining age 60 (i.e., 3 March 2008).  For an unknown reason, the applicant's request was not acted upon and he is receiving retired pay based on pay grade W-3.

5.  Records show the applicant served satisfactorily in the grade of CPT/O-3 as a reserve commissioned officer in an active status for not less than six months. Thus, he is entitled to be placed on the retired list in the rank of CPT/O-3. Therefore, it would be appropriate to correct the applicant's records to show he was placed on the retire list in the rank of CPT/pay grade O-3 and authorized retired pay in that grade effective 3 March 2008.

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 showing he was placed on the retired list in the rank of CPT/pay grade O-3 and authorized retired pay in the pay grade of O-3 effective 3 March 2008.

2.  As a result of the foregoing correction, the Board recommends the Defense Finance and Accounting Service be notified to provide the applicant payment of all retired back pay due as a result of this correction of records based on his eligibility for retired pay in the rank of CPT/O-3 effective 3 March 2008.



      _______ _   __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)                                         AR20090008465



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ABCMR Record of Proceedings (cont)                                         AR20090008465



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