BOARD DATE: 28 September 2010
DOCKET NUMBER: AR20100010563
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, that his record be corrected to show his final Date Initially Entered Military Service (DIEMS) as 10 September 1979; that his retirement pay plan be changed from High-3 to Final Pay based on his DIEMS; and that he be provided all back retirement pay due as a result of this correction.
2. The applicant states his DIEMS is incorrectly posted as his commissioning month and year. The origin of this error cannot be traced. He entered into a contract with the United States Army by signing a DA Form 597 (Army Senior Reserve Officers Training Corps (ROTC) Student Contract) and DD Form 4 (Enlistment/Reenlistment Document-Armed Forces of the United States) on
10 September 1979.
3. The applicant provides the following documents in support of his application:
* A DD Form 4, dated 10 September 1979
* A webpage from the Soldier Management System (SMS) which depicts his DIEMS as 1 May 1981
* Headquarters, U.S. Army Garrison and Fort Stewart/Hunter Army Airfield, Orders 012-0001, dated 12 January 2010
* A DD Form 214 with an effective date of 31 January 2010
* DIEMS Frequently Asked Questions
* Computer Printouts of the Military Compensation-Final Pay System
CONSIDERATION OF EVIDENCE:
1. A copy of a DD Form 4, dated 10 September 1979, shows the applicant entered into an ROTC scholarship contract, was appointed a scholarship cadet, and enlisted in the U.S. Army Reserve for 6 years on 10 September 1979. The DA Form 597 is not available for review; however, it is listed as an enclosure on the DD Form 4.
2. Headquarters, U.S. Army Garrison and Fort Stewart, Hunter Army Airfield, Orders 012-0001, dated 12 January 2010, authorized the applicants retirement on 31 January 2010 and placement on the Retired List on 1 February 2010, in the retired grade of colonel. These orders show the applicants DIEMS as 1 May 1981.
3. The applicant provided a copy of a webpage from SMS which depicts his DIEMS as 1 May 1981.
4. Military Personnel (MILPER) Message Number 03-102, dated 26 February 2003, Subject: DIEMS Date Accuracy announced a Human Resources Command initiative to conduct an Army accuracy scrub to validate DIEMS dates. DIEMS was defined as the date an individual was initially enlisted, inducted, or appointed in the Regular or Reserve Component of a Uniformed Service. It further stated, in pertinent part, that the DIEMS for ROTC cadets would be the date they entered a Scholarship Contract or the date they began the ROTC advanced course, whichever is earlier; and that members with a DIEMS date prior to 8 September 1980 are under the Final Pay Retirement Plan.
5. Title 10, U. S. Code, section 1406 states the retired pay base of any person entitled to retired pay under section 3914 (retirement of enlisted members for length of service) who first became a member of a uniformed service before 8 September 1980 is computed based upon the monthly basic pay of the member's retired grade (also known as Final Pay).
6. Title 10, U. S. Code, section 1407(a) states the retired pay of any person entitled to that pay who first became a member of a uniformed service after 7 September 1980 is computed using the retired pay base determined under this section. Subsection 1407(b) states, except as provided for in subsection 1407(f) (pertaining to certain enlisted members), the retired pay base of a person under this section is the person's high-three average determined under subsection (c) (Regular service) or (d) (non-Regular service) (also known as High-3).
DISCUSSION AND CONCLUSIONS:
1. The applicants contention that his DIEMS should have been established as 10 September 1979, the date he entered into an ROTC scholarship contract and enlisted in the USAR as a cadet, was carefully considered and found to have merit.
2. The Army's policy stipulates the DIEMS for an ROTC cadet will be established as the date the member entered into an ROTC scholarship contract, or the date the individual began the ROTC advanced course, whichever is earlier. The available evidence confirms the applicant entered into an ROTC scholarship contract, was appointed a scholarship cadet, and enlisted in the USAR for 6 years on 10 September 1979, as shown on his DD Form 4 for this period of service.
3. In view of the facts of this case, it would be appropriate to correct the applicants record to show his DIEMS is 10 September 1979, and amending Headquarters, U.S. Army Garrison and Fort Stewart/Hunter Army Airfield, Orders 012-0001, dated 12 January 2010, accordingly. Further, based on his corrected DIEMS, his retirement plan should be corrected by changing it from High-3 to Final Pay, effective 1 February 2010, and he should be provided all back retired pay due as a result.
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:
* Amending Headquarters, U.S. Army Garrison and Fort Stewart/Hunter Army Airfield, Orders 012-0001, dated 12 January 2010, to show his DIEMS as 10 September 1979
* Adjusting his retirement pay plan from High-3 to Final Pay
* Recalculating his pay, allowances, and retired pay; and
* Paying him all back pay, and allowances, and retired pay due
* Correcting all other Army records to show his DIEMS as 10 September 1979
_______ _ 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) AR20100010563
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