IN THE CASE OF:
BOARD DATE: 9 September 2010
DOCKET NUMBER: AR20100000059
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, correction of his military records to credit him with all of his Massachusetts Army National Guard (MAARNG) service.
2. The applicant states that his retirement should have been based on his MA ARNG service which would provide him a higher amount of retired pay.
3. The applicant provides, in support of his application, copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty), discharge orders, NGB Form 23B (Army National Guard Retirement Points History Statement), retirement orders, transition orders, and a letter from the U.S. Army Human Resources Command, St. Louis, Missouri (HRC-STL).
CONSIDERATION OF EVIDENCE:
1. The applicant's NGB Form 23B shows that he had earned a total of 4,580 points for retired pay during the following periods of service:
a. 25 January 1966 to 12 July 1970 - service in the Regular Army;
b. 13 July 1970 to 24 January 1972 - service in the Ready Reserve;
c. 25 January 1972 to 9 July 1979 - no military service;
d. 10 July 1979 to 9 July 1981 - ARNG unit member;
e. 10 July to 17 November 1981 - no military service;
f. 18 November 1981 to 17 November 1984 - ARNG unit member;
g. 18 November 1984 to 28 June 1987 - no military service;
h. 29 June 1987 to 7 November 2006 - ARNG unit member;
i. 8 November 2006 to 15 October 2007 - mobilized ARNG service;
j. 16 October 2007 to 27 April 2009 - ARNG active service, Title 10 U.S. Code; and
k. 28 April 2009 - ARNG unit member.
2. Orders 068-0003, Headquarters, U.S. Army Fort Dix, New Jersey, dated
9 March 2009, assigned to Fort Dix, New Jersey for separation processing.
3. Orders 068-0004, Headquarters, U.S. Army Fort Dix, dated 9 March 2009, released the applicant from assignment and duty because of a physical disability incurred while entitled to basic pay and under conditions that permit retirement for permanent physical disability. The orders show:
a. effective date of retirement - 27 April 2009;
b. percentage of disability - 30 percent;
c. disability retirement - 6 years, 11 months, 6 days;
d. Section 1405: 10 years, 11 months, 6 days;
4. A letter from the Chief, Transition and Separations Branch, HRC-STL, dated 17 March 2009, informed the applicant that he had been placed on the Permanent Disability Retired List (PDRL) of the Army on 9 March 2009, under Title 10, U.S. Code, section 1201. He was further informed that he was not entitled to a retirement.
5. Orders 120-004, MAARNG, dated 30 April 2009, discharged the applicant from the ARNG and the Reserve of the Army, effective 28 April 2009.
6. In the processing of this case, an advisory opinion was obtained from the Chief, Personnel Division, National Guard Bureau. The opinion, in essence, recommended that the applicant's retirement order Number 068-0004, dated
9 March 2009, be amended to correctly reflect his total years of service in the MA ARNG [section 1405]. Once the order is corrected, the Defense Finance and Accounting Service (DFAS) should audit the applicant's retired pay account based on this correction to determine which method of calculation, disability percentage or years of service, provides the greatest entitlement. The attachments (three emails and a DA Form 5892 (Estimated Disability Compensation Worksheet) to the opinion further provided:
a. Title 10, U.S. Code, section 4505, provides for the computation of years of non-regular service. For ARNG Soldier, combined service is recorded on the NGB 23. Years of service is calculated by dividing the total number of points for retirement by 360.
b. The applicant years of service is calculated using the following formula
(4,580/360 = 12.722 years) or approximately 12 years, 8 months and 20 days.
7. On 8 July 2010, the advisory opinion was sent to the applicant for his information and opportunity to rebut. No response was received.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends, in effect, that his military records should be corrected to credit him with all of his Massachusetts Army National Guard (MA ARNG) service. He further contends that his disability retired pay should be based on his years of service because it is more favorable to him.
2. The applicant's disability retirement orders show his years of service under section 1405 as 10 years, 11 months, and 6 days. However, the available evidence of record shows that his years of service under this section are
12 years, 8 months, and 20 days. Therefore, his orders should be amended to correct the error. Furthermore, his retired pay account should be audited based on this correction.
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 the State Army National Guard records and the Department of the Army records of the individual concerned be corrected by:
a. amending Orders 068-0004, Fort Dix, New Jersey, dated 9 March 2009, to show: Section 1405: 12 years, 8 months, 20 days;
b. auditing the applicant's retired pay account based on this correction; and
c. paying any monies due as a result of this correction.
____________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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