IN THE CASE OF:
BOARD DATE: 6 April 2010
DOCKET NUMBER: AR20090010892
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 military records to show his total service for retired pay as 23 years and 4 months.
2. The applicant states his retired pay is based on 21 years and 8 months of service. He believes this is in error and wants his inactive service in 1955 and 1957 through May 1960 credited for basic pay.
3. The applicant provides, in support of his application, copies of his
DD Form 214 (Certificate of Release or Discharge from Active Duty);
Orders 171-55, dated 27 August 1982; and DA Form 2339 (Application for Voluntary Retirement), dated 19 February 1981.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. At the time of his application, the applicant was retired from the Regular Army as a sergeant first class, pay grade E-7.
3. DA Form 2339 [not the copy provided by the applicant with this request] signed by the applicant and dated 10 August 1982 shows he desired to retire effective 1 January 1983. This form shows he was credited with 21 years,
2 months and 3 days of active Federal service and 3 years and 3 months of inactive service. His total service for basic pay purposes was shown as
24 years, 5 months and 3 days.
4. Orders 171-55, 2nd Armored Division, dated 27 August 1982, released the applicant from active duty on 31 December 1982 and placed him on the Retired List effective 1 January 1983, in the rank of sergeant first class, pay grade E-7.
5. The applicant's DD Form 214, ending on 31 December 1982, shows he was retired for length of service under the authority of Title 10, U.S. Code, section 3914, as a Regular Army Soldier with more than 20 but less than 30 years of service.
6. Records at the Defense Finance and Accounting Service (DFAS) show the applicant's retired pay was calculated using his active duty service of 21 years,
2 months and 3 days; and his total service for pay of 24 years, 5 months, and
3 days.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends his retired pay was not correctly computed based on his years of service. He believes he should be receiving retired pay based on
23 years and 4 months of service.
2. A review of the applicant's personnel and retired pay records revealed that his retired pay was calculated using both his active service of 21 years, 2 months, and 3 days and his total service for basic pay of 24 years, 5 months, and 3 days.
3. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.
4. In view of the foregoing, the applicant's request should be denied.
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) AR20090010892
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ABCMR Record of Proceedings (cont) AR20090010892
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