IN THE CASE OF:	  

		BOARD DATE:	  17 December 2009

		DOCKET NUMBER:  AR20090009309 


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 that he be shown to have been placed on the Retired List in the rank and pay grade of captain (CPT) O-3E, with retroactive pay and allowances effective 30 January 2004.

2.  The applicant states that his 13 years of honorable enlisted service entitled him to have received retired pay of O-3E.  He states he retired from the U.S. Army Reserve (USAR) effective 30 January 2004.  He trusted the system to correctly calculate his retirement pay based on his combination of enlisted service and officer service which qualifies him to retire as an O-3E with 20 years of service.  Consequently, he never checked the results of his retirement pay to verify he was being paid as an O-3E until he received news of the new pay raise in November 2008.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 17 July 1969; his DD Form 214 (Report of Separation from Active Duty) for the period ending 30 April 1976; his Honorable Discharge Certificate, dated 17 August 2004; and his discharge orders from the USAR 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 was born on 30 January 1944.  He enlisted in the Regular Army on 24 April 1967 and served until he was discharged on 17 July 1969 to accept a commission as a second lieutenant (2LT).  At the time of his discharge, he had completed 2 years, 2 months, and 24 days of active enlisted service.

3.  He was appointed as a Reserve commissioned officer on 18 July 1969 in the rank of 2LT.  He was promoted to first lieutenant (1LT) on 18 July 1970.  On 16 July 1971, the applicant was appointed as a commissioned officer in the Regular Army.

4.  The applicant was promoted to CPT, O-3, on 18 August 1971.

5.  On 9 December 1975, the applicant tendered his unqualified resignation from the U.S. Army under the provisions of Army Regulation 635-120, chapter 3 with an effective date of 30 April 1976.  His request was approved on 9 February 1976.

6.  The applicant was discharged from active duty on 30 April 1976 in the rank of CPT, O-3.  At the time of his discharge, he had completed 6 years, 9 months, and 13 days of active commissioned service.  

7.  After a break in service, the applicant enlisted in the USAR on 21 November 1989 in the rank of sergeant.  He was released from the USAR on 31 January 1992 for enlistment in the Army National Guard.  

8.  The applicant enlisted in the Army National Guard on 1 February 1992.  He was honorably discharged from the Army National Guard on 24 May 1995 for enlistment in the USAR and was assigned to the USAR the following day.  

9.  He was promoted to staff sergeant (SSG) on 19 March 1998.

10.  The applicant was issued his notification of eligibility to receive retired pay at age 60 (20-year letter) on 2 February 2001.

11.  The applicant was discharged from the USAR on 17 August 2004 in the rank of SSG.

12.  Information obtained from the Defense Finance and Accounting Service (DFAS) on 16 November 2009 indicated the applicant is being paid in the rank of CPT, O-3.

13.  Title 10, U.S. Code, section 3964, provides, in pertinent part, that retired personnel may be advanced in grade to the highest grade satisfactorily held while on active duty, as determined by the Secretary of the Army, upon completion of 30 years of service.  This service may consist of combined active service and service in the USAR Control Group (Retired), and the Army Grade Determination Board is the agency that reviews the records and/or applications for advancement on the Retired List in behalf of the Secretary for those who have attained 30 years of service.

14.  The Department of Defense Military Pay and Allowances Entitlements Manual provides the statutory provisions for military pay and allowances.  It states, in pertinent part, that commissioned officers in the pay grades O-1, O-2, or O-3 are entitled to the special rate of pay for O-1E, O-2E, or O-3E if the officer has a combined total of over 4 years of active service (4 years and 1 day or more) as an enlisted member are entitled to the special rate of basic pay grade O-1E, O-2E, or O-3E.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his 13 years of honorable enlisted service entitled him to have received retired pay of O-3E has been noted.  However, the evidence of record shows the applicant was properly advanced on the Retired list to the pay grade of O-3 based on the fact that it was the highest pay grade he had served in while on active duty.

2.  At the time the applicant served on active duty as a captain/O-3, he had 2 years of active enlisted service.  While it is noted that he had subsequent enlisted service in the USAR after he was discharged as a CPT/O-3, that service cannot be combined with his enlisted service retroactively for the purpose of qualifying him for O-3E status.

3.  Since he did not have over 4 years of enlisted service at the time he was commissioned, he was never paid as an O-3E.  Since he was never paid as an O-3E while on active duty, he is not eligible to receive retired pay at the rate of 
O-3E.

4.  Accordingly, the highest grade he served on active duty was CPT, O-3.  Therefore, since he has failed to show through the evidence submitted and the evidence of record that there was an error or injustice in the computation of his service and his advancement on the Retired List, there appears to be no basis to grant his request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x____  ____x____  ____x____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      ____________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)                                         AR20090009309



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ABCMR Record of Proceedings (cont)                                         AR20090009309



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