IN THE CASE OF:	

		BOARD DATE:	  08 June 2010

		DOCKET NUMBER:  AR20090014743 


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 retired and paid in the pay grade of O-3E (captain with over 4 years of enlisted service) and paid under the Redux Plan at the High-3 rate (average of last 36 months) based on retiring as an O-3E at 20 years of service.

2.  The applicant states that he did not complete 10 years of service as a commissioned officer in order to retire as an officer; however, he was told repeatedly that his retirement pay would be based on his high 3 years of pay by members of the finance community to include Retirement Services, after calling about the matter and no one could show him a regulation that differs from that.  He continues by stating that his retirement was based on reasons of hardship and he desires an exception to retire in the pay grade of O-3E.  He also states that his retirement pay of $1449.00 a month is the equivalent of an E-7 with over 12 years of service.

3.  The applicant provides a 2-page letter of explanation to the Board, a copy of a death certificate for his wife, a memorandum for record from the unit G-1, copies of awards for service, and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army in Miami, Florida, on 17 November 1988 for a period of 4 years under the airborne infantry enlistment option.  He completed his training and remained on active duty through a series of continuous reenlistments until he was honorably discharged as a special forces engineer sergeant in the pay grade of E-7 on 2 August 2000 to accept a commission.  He had served 11 years, 8 months, and 16 days of active service.

2.  On 2 August 2000, he was commissioned as an infantry second lieutenant with a concurrent call to active duty.  He remained on active duty and was promoted to the rank of captain on 1 January 2004.  His spouse died on 22 September 2005.

3.  Although not contained in the available records, the applicant submitted his request for unqualified resignation and it was approved by the U.S. Army Human Resources Command on 22 September 2008 with an effective date of 19 November 2008.

4.  On 27 November 2008, the applicant was honorably discharged for the purpose of immediate enlistment or reenlistment.  He then enlisted in the Regular Army in the pay grade of E-7 for a period of 2 years and on 1 December 2008 he was placed on the Retired List in the pay grade of E-7.  He had served 20 years and 14 days of active service.

5.  In the processing of this case, a staff member contacted officials at the Defense Finance and Accounting Service (DFAS) to determine the retirement plan under which the applicant is being paid.  Officials at DFAS indicated the applicant was retired in the pay grade of E-7 and is being paid under the Redux Plan at the 40-percent rate.  He will be eligible for advancement to a higher grade when he attains 30 years of service (2018).  Officials at DFAS opined that his retired pay appears to be computed properly based on information contained at that location.

6.  The High-3/Redux Plan pertains to Soldiers with a date initially entered military service of 1 August 1986 or later.  Their retired pay is computed as 2 1/2 times the number of years of service, minus 1 percent for each year under 30 years of service, times the average of the highest 36 months of base pay during that service.  Annual cost of living allowances are reduced by 1 percent below those for the Final Pay and High-3 Plans.  This one-time adjustment is not retroactive.  In addition, for each year after age 62, annual cost of living allowances are again reduced by 1 percent.

7.  Title 10, U.S. Code, section 1370, provides the legal authority for retirement in the highest grade held satisfactorily for commissioned officers.  It states, in pertinent part, that commissioned officers who retire under any provision of law shall be retired in the highest grade in which they served on active duty satisfactorily, as determined by the Secretary of the military department concerned, for not less than 6 months.  The law requires a member to serve on active duty in the rank and pay grade of captain/O-3 for a minimum period of 6 months in order for service in this rank and pay grade to be considered satisfactory for advancement on the Retired List.

8.  Title 10, U.S. Code, section 3964, provides the legal authority for advancement of warrant officers and enlisted members on the Retired List.  It states, in pertinent part, that warrant officers and enlisted members of the Army are entitled, when their active service plus their service on the retired list totals 30 years, to be advanced on the Retired List to the highest grade in which they served on active duty satisfactorily.

9.  Title 10, U.S. Code, section 3911, provides that the Secretary of the Army may, upon the officer's request, retire a regular or reserve commissioned officer of the Army who has at least 20 years of service computed under section 3926 of this title, at least 10 years of which have been active service as a commissioned officer.  Section 1407(a) provides, in pertinent part, that officers who retire with less than 30 years of service and before completing 10 years of commissioned service will be retired in their enlisted status and can only use the basic pay for their enlisted time in the calculation of the average of their highest 36 months of basic pay.

10.  Title 10, U.S. Code, section 3914, provides that an enlisted member with 20 to 30 years of service may request retirement.  Section 1406(c )(1) provides that retired pay will be calculated based on the base pay to which a member is entitled on the day before he or she retires.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should be retired in the pay grade of O-3E, the highest grade he held while on active duty, has been noted; however, to do so would afford the applicant a benefit that is not provided to others in similar situations.

2.  The applicant was aware at the time he made his election to retire that he would not be retired as a commissioned officer because he had not yet served 10 years of commissioned service necessary to qualify for retirement as a commissioned officer.  In doing so, he made the decision to retire in his enlisted status of E-7. 

3.  The applicant's contention that he was not properly informed of his retired pay computation has been noted and appears to lack merit.  The applicable laws and regulations provide that officers who voluntarily retire with at least 20 but less than 30 years of service and do not have 10 years of service as a commissioned officer will retire in their enlisted grade and have their retired pay calculated at their enlisted retired pay grade.  Commissioned officer pay will not be used in the computation when retired at an enlisted pay grade.

4.  The applicant was in fact retired in the pay grade of E-7 and his retired pay was computed based on the highest 36 months of enlisted basic pay he received.  However, once he has served 30 years of service (2018) he is eligible for consideration to be advanced on the Retired List to the highest grade he held on active duty.  He is encouraged to apply for advancement at that time in accordance with Army Regulation 15-80 (Army Grade Determination Review Board and Grade Determinations).

5.  While the circumstances surrounding the applicant's voluntary retirement are indeed unfortunate, his retirement and the computation of his retired pay in that status does not constitute an error or injustice on the part of the Army.

6.  Obviously, the issue in this case is the amount and the method used in computing the applicant's retired pay.  However, the available evidence shows that he is being properly paid based on his service in the pay grade of E-7.  While the applicant may not agree with the amount and the method of calculation, he is being paid in accordance with the laws in effect with no indication of any violations of any of his rights.

7.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X___  ____X___  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 wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Global War on Terrorism.  The applicant and all Americans should be justifiably proud of his service in arms.



      ___________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)                                         AR20090014743



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ABCMR Record of Proceedings (cont)                                         AR20090014743



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