BOARD DATE:	  1 July 2010

		DOCKET NUMBER:  AR20090018620 


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 Pay Entry Basic Date (PEBD) to
14 June 1974 (or at least 16 August 1977) and all back pay from 1 November 1988 to 27 May 2003.

2.  The applicant states he was sworn into the Illinois Army National Guard (ILARNG) on 17 May 1970 and served until 16 May 1976.  He was assigned to the U.S. Army Reserve (USAR) Control Group from 17 May 1976 to 2 February 1978.  He adds that these two periods of service gave him a total of 7 years,
8 months, and 15 days of creditable service for pay.

   a.  He had a break in service from 2 February 1978 through 30 April 1985.

   b.  He was sworn into the USAR on 1 May 1985 and entered active duty on 19 June 1985.  He was assigned a PEBD of 14 June 1974 based on his medical school, residency and experience, and his prior military service.  He served on active duty through 18 June 1988.  He adds he has no problem with the pay he received up until and through this period.

   c.  On 19 June 1988, he was transferred from the active Army to the USAR and assigned to the 801st General Hospital in Skokie, Illinois.  Shortly thereafter, despite his protests, his PEBD was changed to 11 January 1979.  He adds that based on the date of his reentry into the USAR of 1 May 1985, and subtracting his 7 years, 8 months, and 15 days of prior creditable service for pay, his PEBD should have at least been 16 August 1977.
   
   d.  He transferred from the USAR to the ILARNG on 20 April 1990 and subsequently to the Retired Reserve (gray area) on 27 May 2003.  He adds that in January 2003 his PEBD was changed to 10 May 1977, partially correcting the issue.
   
   e.  He reentered active duty in the  Army and served from 1 October 2004 through 30 September 2007.  He states that the leave and earnings statement (LES) he was issued upon leaving active duty accurately shows his pay date of 14 June 1974.  He adds he has no problem with his pay on active duty during this period.

   f.  He states that he sees no need to have his military service time changed or amended since it accurately reflects his contention that his PEBD is 14 June 1974.  He states the problem is the injustice caused when a Finance official changed his PEBD in late 1988 while he was assigned to the 801st General Hospital.  He adds he has calculated this many times and the change that was made to his PEBD at the time amounts to a sum of over $12,000.  However, he defers to experts to recalculate the sum of money he may be due.

3.  The applicant provides copies of a Statement of Service, three LES's, an ILARNG Pay Branch letter, and extract from the Department of Defense Financial Management Regulation.

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.  Office of Personnel Operations, Fort Benjamin Harrison, Indiana, letter, dated 15 September 1970, appointed the applicant as a Reserve commissioned officer of the Army, in the rank of first lieutenant/O-2 in the Medical Corps (MC), on
17 May 1970.  At the time, he was credited with 4 years, 11 months, and 5 days 


in an active status.  This letter states, "[i]f you have been credited with 'years of service in an active status,' the number of years, months, and days is shown after C.  This service is not valid for PEBD as it is not the result of prior military service."

3.  ILARNG, Special Orders Number 83, dated 28 April 1976, honorably separated the applicant from the ARNG effective 16 May 1976 and transferred him to the USAR Control Group (Standby Reserve).

4.  Reserve Components Personnel and Administration Center (RCPAC),
St. Louis, Missouri, Orders 12-1142604, dated 21 December 1977, honorably discharged the applicant from the USAR Control Group (Standby Reserve) effective 1 February 1978.

5.  RCPAC letter, dated 23 April 1985, appointed the applicant as a Reserve commissioned officer of the Army, in the rank of captain/O-3 in the MC effective upon his acceptance.  He was credited with 13 years, 10 months, and 16 days in an active status as of the date of his entry on active duty.  This letter states, "[i]f you have been credited with 'years of service in an active status,' the number of years, months, and days is shown after D (applies only to Medical personnel and the Judge Advocate General's Corps).  This service is not valid for PEBD (see paragraph 10102, DODPM for Medical and Dental Corps personnel) as it is not the result of prior military service."

6.  A DA Form 71 (Oath of Office - Military Personnel) shows the applicant executed the oath of office for appointment as a Reserve commissioned officer in the grade of captain/O-3 on 1 May 1985.

7.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant entered active duty on 19 June 1985, was honorably released from active duty on 18 June 1988, and transferred to the 801st General Hospital, USAR, Chicago, Illinois.  He had completed 3 years of net active service this period.

8.  Headquarters, Fourth U.S. Army and Fort Sheridan, Fort Sheridan, Illinois, Orders 236-110, dated 24 August 1990, released the applicant from the USAR Control Group (Ready Reserve) and assigned him to Headquarters and Headquarters Company, 66th Brigade, 47th Infantry Division, ILARNG, Decatur, Illinois, effective 20 April 1990, upon his acceptance of appointment in the ILARNG. 

9.  An ILARNG letter, dated 11 August 1999, notified the applicant that, having completed the required years of service, he will be eligible for retired pay upon application at age 60.

10.  The applicant was promoted to colonel/O-6 effective 2 October 1991.

11.  A National Guard Bureau Form 22 (Report of Separation and Record of Service) shows the applicant entered the ILARNG on 20 April 1990, was honorably released on 27 May 2003, and transferred to the USAR Control Group (Retired Reserve).  He had completed 13 years, 1 month, and 8 days of net service this period.

12.  U.S. Army Human Resources Command (HRC), St. Louis, Missouri, memorandum, dated 8 July 2004, appointed the applicant as a Reserve commissioned officer of the Army in the rank of colonel in the MC effective upon his acceptance.  He was credited with 22 years, 0 months, and 0 days in an active status as of the date of his entry on active duty.  This letter states, "[i]f you have been credited with 'years of service in an active status,' the number of years, months, and days is shown after D (applies only to Chaplains, Medical personnel and the Judge Advocate General's Corps).  This service is not valid for PEBD (see DODPM paragraph 10102, for Medical and Dental Corps personnel) as it is not the result of prior military service."

13.  HRC Orders A-07-491472, dated 8 July 2004, as amended by
Orders A-07-491472A01, dated 2 August 2004, and Orders A-07-491472A02, dated 9 November 2004, ordered the applicant to active duty on 1 October 2004.

14.  Kaiserslautern Transition Center Orders 205-01, dated 24 July 2007, reassigned the applicant to the Kaiserslautern Transition Center, released him from active duty on 30 September 2007, and transferred him to the USAR Control Group (Retired).

15.  The applicant's Total Army Personnel Data Base electronic record, accessible via the HRC Integrated Web Services portal, contains a U.S. Army Reserve Personnel Command (ARPC) Form 249-E (Chronological Statement of Retirement Points).

   a.  This document provides a summary of his military service from 17 May 1970 through 1 October 2007.  It shows his break in service from 2 February 1978 through 30 April 1985 and also his period in the USAR (Retired) from
28 May 2003 through 30 September 2004.

	b.  It shows a PEBD of 22 March 1974.
   c.  It also shows he has 25 years, 0 months, and 0 days of qualifying service for retirement and 3,578 total points creditable.  [It is noted the applicant's final year of active duty service from 1 October 2006 through 30 September 2007 is not entered on the document.]
   
16.  In support of his application, the applicant provides the following documents:

	a.  a DA Form 1506 (Statement of Service - For Computation of Length of Service for Pay Purposes), dated 19 June 1985, that shows the applicant served in the ARNG from 17 May 1970 through 16 May 1976 and in the active Army from 1 May 1985 to the [then] present.  It also shows the dates he attended medical school, his internship, and residency for urology.  This document contains the statement "is not verified from official military records."

   b.  three of his LES's that show for the period:
   
* 1-31 July 1985, a PEBD of 14 June 1974
* 1-31 December 1988, a PEBD of 11 January 1979
* 1 August 2003, a pay date of 5 October 1977

   c.  an ILARNG memorandum, dated 9 June 2005, that shows the Retirement Points Accounting Management noncommissioned officer requested that the Pay Branch change the applicant's PEBD to 22 March 1974.  She also requested he receive payment of his back pay from 20 April 1990 through 27 May 2003 and from 1 October 2004 to the [then] present.

17.  In connection with the processing of this case, the Defense Finance and Accounting Service (DFAS) Army Military Pay Operations-Cleveland Retired and Annuitant Pay Branch was asked to verify the applicant's total creditable service. DFAS responded that the applicant's current retirement date is 1 October 2007; he has 30 years, 1 month, and 15 days of creditable service for basic pay;
3,943 Reserve retirement points; and 26 years of qualifying Reserve service.

18.  Department of Defense Financial Management Regulation 7000.14-R, volume 7A (Military Pay Policy and Procedures - Active Duty and Reserve Pay), chapter 1 (Basic Pay), paragraph 0101 (Creditable Service), subparagraph 010101 (Service Which Is Creditable), provides in:

   a.  section B (Computation of Creditable Service) that for most members who enter and serve on active duty without a break in a service, the basic pay date is the date the member enters active or inactive service.  If, however, there is a break in service, the time between periods of service usually is not included;

   b.  section E (Constructive Service) that some medical and dental officers are entitled to extra credit for longevity purposes to reflect the time spent in medical or dental school, to include those who on or before 15 September 1981 already had that extra credit; and
   
   c.  paragraph 010102 (Service Not Creditable) provides, in general, do not use any service that is not listed as creditable service to compute a basic pay date [emphasis added].  It also lists a few types of service that are not creditable, which includes the constructive time authorized for determining grade and eligibility for promotion.

19.  Title 31, U.S. Code, section 3702, also known as the barring statute, prohibits the payment of a claim against the Government unless the claim has been received by the Comptroller General within 6 years after the claim accrues.  Among the important public policy considerations behind statutes of limitations, including the 6-year limitation for filing claims contained in this section of Title 31, U.S. Code, is relieving the government of the need to retain, access, and review old records for the purpose of settling stale claims, which are often difficult to prove or disprove.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his PEBD should be corrected to 14 June 1974 (or at least to 16 August 1977) and requests payment of all back pay he is due as a result of this correction from 1 November 1988 to 27 May 2003 because a Finance official changed his PEBD in late 1988.

2.  Orders show the applicant was credited with various "years of service in an active status" on at least three separate occasions when he was appointed in an active status.  The orders also show that this service was not valid for his PEBD as it was not the result of prior military service and that this constructive time was authorized for determining grade and eligibility for promotion.

3.  The applicant was appointed as a Reserve commissioned officer on 17 May 1970 and he was honorably separated effective 16 May 1976.

   a.  This period of service equates to 6 years, 0 months, and 0 days of creditable service.
   
   b.  The applicant's PEBD during this period was 17 May 1970 [emphasis added] and does not require adjustment for this period of service.
   
4.  The applicant transferred to the USAR Control Group (Standby Reserve) on 17 May 1976 and he was honorably discharged effective 1 February 1978.

   a.  This period of service equates to 1 year, 8 months, and 15 days of creditable service.

   b.  The applicant's prior service in the USAR of 6 years plus the additional
1 year, 8 months, and 15 days equates to a total of 7 years, 8 months, and
15 days of creditable service.

5.  The applicant had a break in service from 2 February 1978 through 30 April 1985.  This time between periods of service is not included in the computation of creditable service.

6.  The applicant was appointed as a Reserve commissioned officer on 1 May 1985.  Records show he had continuous creditable service (in the USAR, active Army, and ILARNG) through 27 May 2003.

   a.  Given his break in service from 2 February 1978 through 30 April 1985, the 7 years, 8 months, and 15 days of total prior creditable service must then be subtracted from his latest entry date of 1 May 1985, which results in a PEBD of 16 August 1977 [emphasis added].

   b.  The applicant acknowledges his PEBD during this period should be at least to 16 August 1977.

	c.  The period of service from 1 May 1985 through 27 May 2003 equates to  18 years, 0 months, and 27 days of creditable service. 

7.  The applicant was transferred to the USAR (Retired) on 28 May 2003 and remained in that status through 30 September 2004.  This period equates to
1 year, 4 months, and 3 days and it was not creditable service for basic pay [emphasis added].

	a.  He was ordered to active duty on 1 October 2004 and served in an active status through 30 September 2007 for a total of 3 years, 0 months, and 0 days of creditable service.

   b.  His two prior periods of creditable service of 7 years, 8 months, and
15 days plus 18 years, 0 months, and 27 days equates to 25 years, 9 months, and 12 days of total creditable service.

   c.  Given his break in service from 28 May 2003 through 30 September 2004, the 25 years, 9 months, and 12 days of total prior creditable service must then be subtracted from his latest entry date of 1 October 2004, which results in a PEBD of 19 December 1978 [emphasis added].

8.  The applicant's ARPC Form 249-E shows 25 years of qualifying service for retirement and 3,578 total points creditable.

   a.  The applicant's final year of active duty service from 1 October 2006 through 30 September 2007 is not entered on the document.  This period equates to 365 active duty points and 1 qualifying year for retirement.

   b .  Adding the 365 active duty points to the 3,578 total points results in the sum of 3,943 total points creditable.  Also, by adding the 1 additional year of qualifying service to the 25 qualifying years results in 26 years of qualifying service for retirement.  Therefore, it would be appropriate to correct the applicant's ARPC Form 249-E to show his final additional year of service.

9.  The sum of the applicant's prior periods of creditable service of 7 years,
8 months, and 15 days; plus 18 years, 0 months, and 27 days; plus 3 years,
0 months, and 0 days equates to 28 years, 9 months, and 12 days of total creditable service [emphasis added].

10.  DFAS records shows the applicant's current retirement date is 1 October 2007 and that he has 30 years, 1 month, and 15 days of creditable service for basic pay.  Subtracting this creditable service for basic pay from his retirement date results in a PEBD of 16 August 1977.  In addition, DFAS records show the applicant is credited with 3,943 Reserve service points and 26 years of qualifying Reserve service.

11.  Based on the foregoing analysis, it appears DFAS included the applicant's
1 year, 4 months, and 3 days on the retired list from 28 May 2003 through
30 September 2004 as creditable service.  By way of demonstration, his
28 years, 9 months, and 12 days of total creditable service plus 1 year, 4 months, and 3 days on the retired list equates to 30 years, 1 month, and 15 days.

12.  Based on the foregoing and the available evidence, the applicant's:

	a.  July 1985 LES indicates he may have been incorrectly paid during the period of his active duty from 19 June 1985 through 18 June 1988 because his PEBD is shown as 14 June 1974 (vice 16 August 1977).  It is noted that the applicant states he has no problem with the pay he received up until and through this period, but acknowledges his PEBD should have at least been 16 August 1977.

	b.  December 1988 LES indicates he may have been incorrectly paid beginning on 1 December 1988 through the date of his retirement on 27 May 2003 because his PEBD is shown as 11 January 1979 (vice 16 August 1977).  
Again, it is noted the applicant acknowledges his PEBD should have at least been 16 August 1977.

	c.  August 2003 LES indicates he may have been incorrectly paid during the period of his active duty service from 1 October 2004 through 30 September 2007 because his PEBD is shown as 5 October 1977 (vice 19 December 1978).  The applicant states that the LES that was issued upon leaving active duty shows his pay date as 14 June 1974.  It is noted that the applicant states he has no problem with the pay he received up until and through this period.

	d.  Because of the confusion caused by the applicant's several breaks in service and because of the guidance contained in Department of Defense Financial Management Regulation 7000.14-R, volume 7A, paragraph 010101E,  it would be appropriate to conduct a review of all the applicant's pay records
(if still available) and determine if he had been paid correctly during the period beginning 1 May 1985 through 30 September 2007, notify him of the results of that review, and pay him any amount that may be due as a result of the review.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x____  ___x___  ___x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding to the applicant's ARPC Form 249-E his active duty service from
1 October 2006 through 30 September 2007 along with all creditable points during this period, and his adjusted total creditable service.

2.  As a result of the foregoing correction, the Board recommends the Defense Finance and Accounting Service be notified to conduct a review of the applicant's pay records:

   a.  during the period beginning 1 May 1985 through the date of his retirement on 27 May 2003;

   b.  during the period beginning 1 October 2004 through the date of his retirement on 30 September 2007; and

   c.  notify him of the results of that review, and any amount that may be due as a result of the review.  In addition, if applicable, provide the applicant payment of all back pay due as a result of this correction of records.

3.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to adjustment of his PEBD at this time.



      _______ _   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)                                         AR20090018620



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ABCMR Record of Proceedings (cont)                                         AR20090018620



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