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ARMY | BCMR | CY2010 | 20100009638
Original file (20100009638.txt) Auto-classification: Denied

		IN THE CASE OF:	  

		BOARD DATE:	  29 December 2010

		DOCKET NUMBER:  AR20100009638 


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 the following documents to show he was advanced on the retired list to captain (CPT) effective 27 November 2008 instead of 8 March 2012:

	a.  A letter from Human Resources Command, St. Louis, MO (HRC-STL), Transition and Separations Branch, dated 19 January 2010.

	b.  A DD Form 363A (Certificate of Retirement).

	c.  A letter from the HRC-STL, Transition and Separations Branch addressed to the Defense Finance and Accounting Service (DFAS), Cleveland, OH, dated 
19 January 2010.

2.  He states the following:

	a.  His documents are in error because his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 23 years, 
6 months, and 24 days of voluntary active service.

	b.  The data shown in items 12c (Net Active Service This Period) and 12d (Total Prior Active Service) of his DD Form 214 does not reflect the total amount of time that he served under Title 10, U.S. Code (USC),section 1405.  This service equals 26 years, 10 months, and 4 days and it is the amount of service his retirement pay is based on.

	c.  The full relief granted in Army Board for Correction of Military Records (ABCMR) Docket Number AR 20090010275 was based on active duty service that was completed under Title 10, USC, section 1405 as a CPT, O-3.

	d.  With a retirement date of 30 September 2005, his time spent on the retired list plus his active duty time equals 30 years; therefore, his advancement date on the retired list should be corrected to show 27 November 2008.

3.  He provides the following documents in support his application:

* Letter addressed to HRC-STL
* HRC-STL letter addressed to DFAS, Cleveland, OH
* Corrected copy of retirement orders
* Excerpt from Title 10, USC, section 12733 (Computation of Retired Pay:  Computation of Years of Service) and section 1405 (Years of Service)
* Service Computation for Retirement
* Letter from HRC-STL addressed to him
* Certificate of Retirement
* DD Form 214

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Army National Guard (ARNG) on 9 September 1963.  

2.  He was appointed as a commissioned officer on 21 August 1967 and he was promoted to CPT on 10 October 1975.  He was discharged from his commissioned status on 29 August 1983 and enlisted in the ARNG on 30 August 1983.  

3.  He entered active duty as a full-time National Guard duty enlisted Soldier on 6 September 1983.  

4.  His service computation for retirement was completed on 21 June 2005.  His service computation form indicates he completed:

* 23 years, 6 months, and 24 days of active service
* 18 years, 5 months, and 29 days of inactive service
* 42 years and 23 days of total service for basic pay purposes
* 26 years, 10 months, and 4 days of total service for percentage purposes (1405 service) 

5.  Orders published on 16 June 2005 released him from active duty on 30 September 2005 and on the following day he was placed on the retired list in the rank of MSG.  His retirement orders show he completed 23 years, 6 months, and 24 days service for retirement and 26 years, 10 months, and 4 days under section 1405 service creditable for retired pay.

6.  His DD Form 214 shows he completed 22 years and 25 days of active service during the period 6 September 1983 through 30 September 2005 and 1 year, 5 months, and 28 days total prior active service (a total of 23 years, 6 months, and 23 days active service).  

7.  On 8 December 2009, the ABCMR recommended his records be corrected by showing:

	a.  the highest grade he held in accordance with Title 10, section 3964 was CPT.

	b.  advancing him on the retired list to the rank of CPT when his time on the retired list plus his active duty time equals 30 years.

8.  In a letter, dated 19 January 2010, the supervisor of the Retired Pay Branch informed DFAS the applicant was advanced on the retired list effective 8 March 2012 to the rank of CPT.  

9.  In a letter, dated 19 January 2010, the Chief, Transition and Separations Branch at HRC-STL informed the applicant he was advanced on the retired list effective 8 March 2012 to the rank of CPT, the highest active duty grade he satisfactorily held.  

10.  He was issued a Certificate of Retirement which shows he was retired from the U.S. Army on 8 March 2012 in the rank of CPT.  

11.  In his 25 January 2010 letter addressed to HRC-STL, he stated:

* That his correct advancement date on the retired list should be 25 November 2008
* His retirement date was 30 September 2005
* His retirement orders showed he had completed 26 years, 10 months, and 4 days of service under Title 10, section 1405f
* The ABCMR granted him full relief of enough active service as a CPT/O-3 to be advanced on the retired rolls from MSG to CPT


12.  Title 10, USC, Section 3964 states that retired personnel may be advanced in grade to the highest grade satisfactorily held while on active duty, as determined by the Secretary of the Army, upon completion of 30 years of service.  This service may consist of combined active service and service in the USAR Control Group (Retired), and the Army Grade Determination Board is the agency that reviews the records and/or applications for advancement on the retired list in behalf of the Secretary for those who have attained 30 years of service.

13.  Title 10, USC, Section 1405 states, in part, that the years of service of a member are computed by adding his years and the years of service with which the member would be entitled to be credited under section 12733 if he were entitled to retired pay under section 12731 

14.  Chapter 1223 of Title 10, USC governs computation of retired pay.  Section 12733 states that for the purpose of computing the retired pay of a person under this chapter, the person’s years of service and any fraction of such a year are computed by dividing 360 into the sum of the following:

	a.  The person’s days of active service (the term “active service” is defined as service on active duty or full-time National Guard duty).

	b.  The person’s days of full-time service under sections 316, 502, 503, 504, and 505 of Title 32 while performing annual training duty or while attending a prescribed course of instruction at a school designated as a service school by law or by the Secretary concerned.

	c.  One day for each point credited to the person, under clause (B), (C), or (D) of section 12732(a)(2) of this title, but not more than (A) 60 days in any one year before the year of service that includes 23 September  1996; (B) 75 days in the year of service that includes 23 September 1996, and in any subsequent year of service before the year of service that includes 30 October 2000; 
(C) 90 days in the year of service that includes 30 October 2000, and in any subsequent year of service.

	d.  One day for each point credited to the person under subparagraph (E) of section 12732(a)(2) of this title.

15.  Army Regulation 635-5 (Separation Documents) governs the preparation of the DD Form 214.  It states that the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.  The regulation does not provide guidance to enter years of service computed under section 1405 on the DD Form 214.
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions in regard to the effective date he was advanced on the retired list in the rank of CPT have been considered.  However, his service record does not contain evidence which shows that an error or injustice exists in this case.  

2.  He entered active duty as a full-time National Guard duty enlisted Soldier on 6 September 1983 and he served until he was retired from active duty on 30 September 2005.  Items 12c and 12d of his DD Form 214 correctly reflect he completed a total of 23 years, 6 months, and 24 days of voluntary active service.  

3.  At the time he was placed on the retired list, he had completed 23 years, 6 months, and 24 days active service for retirement; and 26 years, 10 months, and 4 days of service under section 1405 creditable for retired pay.  

4.  Creditable service computed under section 1405 includes more than just active service.  It includes one day for each retirement point credited to a member.  This service is not active service and is not retired service and thus is not authorized to be credited towards completing the required service to be advanced on the retired list.

5.  Under Title 10, USC, Section 3964, the applicant may be advanced to the highest rank satisfactorily held at the completion of a combined 30 years active and retired service.  He will not complete the required service and will not be eligible for advancement on the Retired List to the highest rank held (CPT) until
8 March 2012.  

6.  Based on the foregoing, there is no basis for granting the applicant’s request.  

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)                                         AR20100009638



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of

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