IN THE CASE OF:	  

		BOARD DATE:	  3 December 2009

		DOCKET NUMBER:  AR20090010268 


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 his records be corrected to reflect that he was promoted to the rank of lieutenant colonel (LTC) effective 9 November 1999, that he was retired in the rank of LTC effective 31 October 2008, and that he be paid all pay and allowances due him from those changes. 

2.  The applicant states, in effect, that at the time of his regularly scheduled promotion selection board, he was fully qualified for consideration; however, he was not selected.  He was denied an extension of service and he was forced to retire as a major (MAJ) in 2002.  He goes on to state that he was promoted to the rank of LTC on 31 March 2009 with a date of rank and effective date of 9 November 1999; however, because he had been forced to retire, he was denied the opportunity to serve in the rank of LTC to complete his 26 years of maximum service.  He continues by stating that he was paid by the Defense Finance and Accounting Service (DFAS) for LTC from 9 November 1999 to 31 October 2002; however, he was not paid to 2008 and is not being paid retired pay as a LTC.

3.  The applicant provides a copy of his status report in the United States Court of Federal Claims, a copy of his promotion orders to the rank of LTC, a copy of a letter to the applicant from DFAS regarding his pay adjustment, and a copy of an email from the DFAS Retired Pay and Annuity Pay Contact Center.




CONSIDERATION OF EVIDENCE:

1.  The applicant served 3 years and 22 days in the Regular Army (RA) from
30 May 1974 to 21 June 1977.  He was appointed as a U.S. Army Reserve (USAR) second lieutenant on 14 February 1981.  He entered active duty on        6 January 1982 as a Medical Service Corps (MSC) officer.  He was promoted to the rank of first lieutenant (1LT) on 8 March 1982 and to the rank of captain (CPT) on 1 May 1984.

2.  He remained on active duty until 1 October 1991, when he was honorably released from active duty for failure of selection for promotion and he was transferred to the USAR.  He received $47,483.55 in separation pay benefits.

3.  On 5 February 1993, he was promoted to the rank of major with a DOR of 30 April 1991.

4.  On 28 April 1996, he entered active duty in an Active Guard Reserve (AGR) status.

5.  On 20 April 1998, a memorandum was dispatched to the applicant informing him that he had been considered for promotion to LTC, but he was not selected.

6. On 3 June 1999, a memorandum, subject:  Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter) was dispatched to the applicant.

7.  On 26 July 2001, a memorandum was dispatched to the applicant informing him that his request for an Active Federal Service (AFS) extension had been disapproved by an Active Federal Service Extension Board.

8.  Although not present in the available records, it appears that the applicant submitted a request for voluntary retirement in May 2002, requesting that he be placed on the Retired List effective 1 October 2002.  However, on 25 June 2002, he was informed that he had only 19 years, 11 months, and 4 days of active Federal service; therefore, his retirement date had to be changed to 1 November 2002.

9.  On 17 October 2002, a Notification of Promotion Status was dispatched to the applicant’s command in Las Vegas, NV, informing him that he had been selected for promotion by the Department of the Army Reserve Components Selection Board that convened on 28 May 2002.  The notification also informed him that in order for a promotion memorandum to be issued, he had to be assigned or attached to a position equal to or higher than the grade in which selected.  It further stated that if on approval of the board he was not assigned or attached to such a position, his promotion would be delayed until such time as he was so assigned or attached.

10.  On 31 October 2002, he was retired in the rank of major and he was transferred to the Retired List, effective 1 November 2002.  He had served
20 years and 4 days of total active service and he had 28 years, 5 months, and 29 days of service for pay purposes.

11.  In March 2004, he applied to this Board requesting that he be promoted because he was fully qualified for promotion at the time, he was moved to an LTC position, and he was denied a request for extension on active duty before he could accept the promotion and he was forced to retire.  The Board denied his request for promotion on 18 November 2004 based on his 2002 selection.

12.  The applicant again applied to the Board in 2007 requesting that he be promoted to the ranks of LTC and colonel (COL) because he had been unjustly denied promotion consideration and he was forced to retire at 20 years of service.  The Board at that time determined that the applicant had not been considered for promotion by the promotion selection boards that convened in 1999, 2000, and 2001 and on 18 December 2007, the Board granted him consideration by Special Selection Boards (SSBs) for those years.  The Board further directed that in the event that the applicant was selected by an SSB and he could show that he was eligible to be promoted at the time, he could re-apply to this Board.  The Board denied his request for promotion to the ranks of LTC and COL.

13.  The applicant was selected for promotion by the 1999 SSB and on 31 March 2009, orders were published promoting him to the rank of LTC effective 9 November 1999.

14.  On 25 September 2009, 4 months subsequent to his application to the Board, the applicant's retirement orders were amended to show that he was retired in the rank of LTC with a DOR of 9 November 1999 and that DFAS made retroactive payment to the applicant for back pay and allowances.

15.  In the processing of this case the staff of the Board obtained a staff advisory opinion in which the former chief of the USAR Support Branch at what was then the Army Reserve Personnel Command (ARPERSCOM) essentially states that the applicant and one other officer (an LTC and AMEDD officer) scored below the cut-off score for the 2001 AGR Active Federal Service Extension Board and were not selected.  The applicant was one of four AMEDD majors considered for extension.  Nineteen LTC AMEDD officers were considered by this board.  Based on the results of the board and the relative similarity of the applicant's score to the LTC nonselected for an extension, the applicant's overall file would not have been sufficient to warrant an extension by the AFS Extension Board. 

16.  The advisory opinion was provided to the applicant and his counsel for response and the applicant's counsel responded to the effect that the applicant received a DD Form 215 (Correction to DD Form 214) in August 2009 which changed his rank to LTC, his DOR to 9 November 1999, and his retirement date to 31 October 2004.  Accordingly, the applicant is entitled to LTC pay for the period 1 November 2002 to 31 October 2004, Overseas Housing Allowance (OHA) based on his return to Puerto Rico from 1 November 2002 to his new retirement date of 31 October 2004, and basic allowance for housing (BAH) for the period 11 September 2000 to 10 September 2002 because of incorrect computations provided by DFAS.  In support of his rebuttal, he provided a copy of the applicant's promotion orders for promotion to LTC, a copy of the applicant's DD Form 215 dated 25 August 2009, a copy of an amendment to his retirement orders changing his retired grade to LTC and his DOR to 9 November 1999 and a copy of a DFAS-DE Form 0-110 (Computation Sheet).

17.  A review of the available records fail to show any evidence to indicate that the applicant's effective date of retirement was changed by competent authority from 31 October 2002 to 31 October 2004.  Further, there is no evidence the applicant served on active duty from the date of his actual retirement on
1 November 2002 until 31 October 2004.  He served no duty that entitled him to pay and allowances.

18.  The DD Form 215 provided by counsel reflects that it was issued on 25 August 2009 and indicates that the separation date of the DD Form 214 being corrected is 2004/10/31.  It shows that his DD Form 214 was corrected to reflect the applicant's rank as LTC/O-5 and his DOR as 9 November 1999.  The applicant's records do not contain a DD Form 214, dated 31 October 2004.  The last DD Form 214 in the applicant's records show a separation date of
31 October 2002.

19.  The Board has no authority to direct DFAS to make a payment.  Further, the Board is only authorized to correct Army records.  Where such a correction is based on law or regulation, DFAS may accept that correction in determining back pay due.  There is no evidence present nor has the applicant or his counsel provided any evidence to show that the applicant has disputed his pay computations with DFAS.  Accordingly, until such time as he has shown that he has exhausted his administrative remedies regarding his pay disputes, this Board is not authorized to address such issues.

20.  Army Regulation 635-5 (Personnel Separations – Separation Documents) serves as the authority for preparation of the DD Form 214 and the DD Form 215.  It provides, in pertinent part, that the date of the DD Form 214 is the date contained in block 12b under "Separation Date this Period."  When a DD Form 215 is issued to correct a DD Form 214, the date contained in block 12b will be entered in block 5 "Separation Date on DD Form 214 Being Corrected _______."  If the date of separation is being corrected, a separate entry will be made on the DD Form 215 to reflect that a change in block 12b is being made.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his records should be corrected to reflect that he was retired in the rank of LTC has been noted; however, subsequent to his application to the Board orders were published and his DD Form 214 was corrected to reflect those changes.  Accordingly, it appears that no action is required by the Board in this regard. 

2.  The applicant's contention that his records should be corrected to show that he retired effective 31 October 2008 instead of 31 October 2002, with entitlement to all back pay and allowances, because he would have been allowed to serve until 31 October 2008 if he had been timely promoted has been noted and found to lack merit.  The applicant was considered by the 2001 AFS Extension Board and he did not meet the cut-off score for selection along with another officer of the same branch (an LTC).  Therefore, in the absence of sufficient evidence to establish that an error or injustice occurred in the selection process of that board, there appears to be no basis to grant him additional service that he did not perform.

3.  Counsel's contention that the applicant's retirement date was changed from 31 October 2002 to 31 October 2004 and that he is entitled to all back pay and allowances, to include OHA and BAH, has been noted and appears to lack merit.  The evidence of record does not contain and the applicant and his counsel have not provided evidence to show that his retirement date was changed by competent authority to 2004.

4.  The DD Form 215 provided by counsel reflects that a DD Form 214 dated 31 October 2004 was being corrected, when in fact it was a 31 October 2002 
DD Form 214 being corrected.  Therefore, it appears that a typographical error was made on the DD Form 215 issued on 25 August 2009 and lacking evidence to show that his retirement date was in fact changed, the applicant should not receive benefits from this error.

5.  In regard to the applicant's claim to back pay and allowances, until such time as the Board is provided evidence to show that the applicant has exhausted his administrative remedies with DFAS regarding his entitlements, the Board cannot make an informed decision in this matter and routinely does not consider such requests until all administrative remedies are exhausted.

6.  Evidence shows that the applicant’s records contain an administrative error which does not require action by the Board.  Therefore, administrative correction of the applicant’s records will be accomplished by the Case Management Support Division (CMSD), St. Louis, Missouri, as outlined by the Board in paragraph 2 of the BOARD DETERMINATION/RECOMMENDATION section below.

BOARD VOTE:

_____X__  ____X___  ____X__  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board determined that an administrative error in the records of the individual concerned should be corrected.  Therefore, the Board requests that the CMSD-St. Louis administratively correct the records of the individual concerned to show that the DD Form 215 issued on 25 August 2009 was issued to correct errors on the DD Form 214, dated 31 October 2002, instead of 31 October 2004. 



      ______ _ XXX______   ___
               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)                                         AR20090010268



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ABCMR Record of Proceedings (cont)                                         AR20090010268


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