IN THE CASE OF:	

		BOARD DATE:	  22 December 2009

		DOCKET NUMBER:  AR20090008978 


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 he receive drill pay and annual training pay for the period between 1 February 2004 and 14 September 2005.

2.  The applicant states, in effect, he was separated for failure to be promoted to major (MAJ) on 1 February 2004, and he was subsequently reinstated on 
14 September 2005.  He states that had he not been separated, he would have attended 12 drills and 2 weeks of annual training and that during his five prior years of service as an active Reservist in a Troop Program Unit (TPU), he averaged 80 points per year, and was only granted 50 retirement points for both the years he was out.  He states that on 20 December 2005, he was retroactively promoted to MAJ, effective 17 July 2003, and he should receive the difference between MAJ and captain (CPT) pay from 17 July 2003 to 1 February 2004, when he was separated from the Army, and full drill pay from 1 February 2004 to 14 September 2005, the period he was separated from the Army.  He claims the special board that adjourned on 23 March 2005 found in his favor, and he should be entitled to pay that was lost during the period he was separated.  He claims that at the time of his appeal, he asked about back pay and he was told he was not entitled to it but that he would only get points for retirement.  He states that at the time he was relieved just to be able to continue his career, but now he wants the back pay he should rightfully receive. 

3.  The applicant provides the following documents in support of his application:  Army Board for Correction of Military Records (ABCMR) memorandum, dated
8 October 2004; ABCMR Record of Proceedings, dated 30 September 2004; 
United States Army Human Resources Command (USAHRC), St. Louis, MO (USAHRC-St. Louis) memorandum, Subject:  Revocation of Discharge Order, dated 13 September 2005; USAHRC-St. Louis Promotion memorandum, Subject:  Promotion Consideration, dated 13 September 2005; and USAHRC-St. Louis Orders D-10-338965 (discharge orders), dated 21 October 2003.  The applicant lists a memorandum, dated 11 October 2005; two additional discharge orders; and MAJ promotion orders on his application that were not included with the packet received for Board consideration.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR2004102762 on 30 September 2004.

2.  The applicant's record shows that on 1 February 2004 he was honorably discharged from the U.S. Army Reserve (USAR), in the rank of CPT, as a result of being twice non-selected for promotion to MAJ.

3.  As a result of the 2004 action of this Board, the applicant was reconsidered and selected for promotion to MAJ by a Stand-By Advisory Board (STAB) that adjourned on 23 March 2005 and his promotion to MAJ was authorized and announced in Headquarters, USAHRC - St. Louis, Orders B-12-507729, dated 20 December 2005, with a promotion effective date and date of rank of 17 July 2003.

4.  On 30 October 2006, the USAHRC-St. Louis, Deputy Director, Development Directorate, notified the Board that the applicant's records were administratively corrected by crediting the applicant with qualifying service for retirement from the date of his voided discharge through the date of his return to the Ready Reserve. A retirement points summary included in this notification shows the applicant was credited with 50 or more retirement points and qualifying years of service for retirement for the period between 26 August 2003 and 25 August 2006.

5.  The applicant has been serving in an active status in the USAR since the revocation of his discharge orders, in the rank of MAJ, and he has received the appropriate pay and allowances based on his proper grade for all drill and active duty service performed.

6.  Department of Defense Financial Management Regulation (DODFMR), Volume 7A provides military pay policy and procedures active duty and reserve 

pay.  Paragraph 010201 provides guidance on basic pay entitlements and states that members are entitled to receive pay according to their pay grades and years of service if they are on active duty in a pay status.  There are no provisions for paying members for service not performed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should receive drill and annual training pay for the period from 1 February 2004 through 14 September 2005, was carefully considered.  However, by law and regulation, members are authorized to receive pay and allowances while in an active pay status.  The evidence of record confirms the applicant was properly granted a waiver for promotion consideration, he was reconsidered and selected for promotion by a STAB, he was promoted to MAJ effective and with a date of rank of 17 July 2003, and he was properly credited with qualifying retirement points and service for the period in question.  As a result, all recommendations of the Board contained in the 2004 recommendation were complied with and it would not be appropriate to provide the applicant pay for service he did not perform at this time.  Therefore, there is an insufficient evidentiary basis to support granting this portion of the requested relief.

2.  However, since the applicant was promoted to MAJ, effective and with a date of rank of 17 July 2003, it would be appropriate to provide him the difference between CPT and MAJ pay for any qualifying active duty, drill, annual training, or active duty training service he completed between 17 July 2003 and 31 January 2004.  

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 
providing him the difference in captain and major pay for any qualifying active duty, drill, annual training, or active duty for training he performed during the period between 17 July 2003 and 31 January 2004.

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 providing drill and annual training pay for the period 1 February 2004 through 14 September 2005.



      ___________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)                                         AR20090008978



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ABCMR Record of Proceedings (cont)                                         AR20090008978



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