BOARD DATE: 17 June 2010
DOCKET NUMBER: AR20090016052
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 his retired pay be recomputed under the provisions of the Tower Amendment and that he be authorized back pay.
2. The applicant states his retired pay should have been recomputed using the look-back provisions provided by the Tower Amendment. This would have resulted in greater pay from 1 January 1992 onward.
3. The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and numerous pay record documents.
CONSIDERATION OF EVIDENCE:
1. The applicant, a Regular Army colonel, retired with 30 years of service on 30 April 1991.
2. In a section entitled "Understanding Military Retired Pay," the website About.com: Military Pay summarizes:
The Tower Amendment was enacted to ensure that you will not receive a lesser amount of retired pay than you would have received if you had retired on a prior date because of a recent retired pay cost-of-living (COL) adjustment. In the past, there have been times when the retiree COL exceeded the annual military pay raise, which would have resulted in more pay had the member retired prior to the COL date. The Tower eligibility date is usually the day prior to the effective date of an active duty pay increase. Tower pay is computed by utilizing the active duty pay rates in effect on that date, your rank/rate on that date, total service accumulated on that date, and all applicable COL increases.
3. In an advisory opinion, the Retired and Annuity Pay Operations section of the Defense Finance and Accounting Service (DFAS) noted that at the time of the applicant's retirement, the comparative calculations were supposed to have been done, but apparently were not. The calculations now indicate that the applicant has been underpaid. Considering the 6-year barring statute, DFAS has paid the applicant to the maximum extent possible for the period 26 February 2005 to 31 March 2010. DFAS recommended ABCMR authorization for payment of the differential for the remainder of the period.
4. The advisory opinion was referred to the applicant and he concurred.
DISCUSSION AND CONCLUSIONS:
1. The applicant states his retired pay should have been recomputed using the look-back provisions of the Tower Amendment. This would have resulted in greater pay from 1 January 1992 onward.
2. The applicant's retired pay was not computed under the two systems to determine whether or not he would have received more pay had he retired earlier.
3. DFAS has determined the applicant would have received greater retired pay under the Tower provisions. He should retroactively receive the entire difference retroactive to the date of his retirement.
BOARD VOTE:
___x_____ ____x____ __x __ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing his retired pay was computed under the alternative provisions of the Tower Amendment in a timely manner and retroactively paying him the difference for the entire period of his retirement.
___________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.
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