IN THE CASE OF:	  

		BOARD DATE:	  21 December 2010

		DOCKET NUMBER:  AR20100013636 


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 using the High 
3-Year Average Retirement System (commonly known as High-3) and his corrected retirement rank/pay grade of master sergeant (MSG)/E-8.

2.  The applicant states, in effect, that he was fully qualified and should have been promoted from the rank/pay grade of sergeant first class (SFC)/E-7 to MSG/E-8 back in 2006.  He initiated an appeal for retroactive promotion and it was still being processed at the time he retired from the Texas Army National Guard Active Guard Reserve (AGR) on 31 August 2008.  As a result, he was retired as an SFC/E-7.  Accordingly, his retired pay was computed using the 
High-3 formula based on the SFC/E-7 base pay he received during the last 3 years (36 months) of his active duty service.

3.  He further states he was retroactively promoted to MSG/E-8 on 6 February 2009 with an effective date of 28 June 2006.  On 25 February 2009, he submitted a DD Form 827 (Application for Arrears in Pay) to the Defense Finance and Accounting Service (DFAS) requesting back pay for the difference in entitlements between SFC/E-7 and MSG/E-8 during the period 28 June 2006 through 1 March 2009 based on his retroactive promotion.  As a result, DFAS changed his rank/pay grade in its database and paid him the difference in entitlements between SFC/E-7 and MSG/E-8 during the period 28 June 2006 through 31 August 2008, the date he retired.  However, DFAS failed to recompute his retired pay using the High-3 formula and the base pay he would have received as a MSG/E-8 during his last 3 years of active duty service.  As a result, he is still receiving retired pay based on his initial retired rank/pay grade of SFC/E-7.  His attempts to resolve this matter with DFAS have been unsuccessful.

4.  He provides copies of:

* discharge orders
* retirement orders
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* promotion orders
* DD Form 215 (Correction to DD Form 214)
* Retiree Account Statement
* bank statement
* Military Pay (MILPAY) printout

CONSIDERATION OF EVIDENCE: 

1.  The applicant enlisted in the Army National Guard on 13 August 1982.  He entered active duty in the AGR Program on 15 June 1989 and continued to serve on active duty through a series of reenlistments.  He was promoted through the enlisted ranks and attained the rank/pay grade of SFC/E-7 on 13 April 2001.

2.  In 2006, his unit was mobilized in support of Operation Iraqi Freedom and he was assigned to an MSG/E-8 position to perform the duties of company operations sergeant while deployed to Iraq.  He was not promoted to MSG/E-8 at the time.  Upon returning from Iraq, he initiated an appeal for retroactive promotion.

3.  Orders 149-1044 issued by the Texas Army National Guard, Austin, TX, on 28 May 2008 show he was released from active duty on 31 August 2008 and placed on the Retired List in the retired rank/pay grade of SFC/E-7 on 1 September 2008.  His DD Form 214 shows he was retired accordingly.

4.  His Retiree Account Statement effective 2 December 2008 shows his rank as SFC and his gross pay as $2,166.00.

5.  Orders 037-1095 issued by the Texas Army National Guard on 6 February 2009 show he was promoted to MSG/E-8 with an effective date and date of rank of 28 June 2006.

6.  Orders 050-1091 issued by the Texas Army National Guard on 19 February 2009 revoked Orders 149-1044 previously issued by the same headquarters on 28 May 2008.

7.  Orders 050-1093 issued by the Texas Army National Guard on 19 February 2009 show he was released from active duty on 31 August 2008 and placed on the Retired List in the retired rank/pay grade of MSG/E-8 on 1 September 2008.

8.  A DD Form 215, dated 19 February 2009, was rendered to correct his DD Form 214 by changing his rank/pay grade from SFC/E-7 to MSG/E-8 with an effective date of pay grade of 26 June 2006.

9.  On 25 February 2009, he submitted a DD Form 827 to DFAS requesting back pay for the difference in entitlements between SFC/E-7 and MSG/E-8 during the period 28 June 2006 through 1 March 2009 based on his retroactive promotion.

10.  He provides a MILPAY printout and a bank statement which show DFAS changed his rank/pay grade to MSG/E-8 in its database and paid him the difference in entitlements between SFC/E-7 and MSG/E-8 during the period 28 June 2006 through 31 August 2008, the date he retired.

11.  His monthly retirement pay did not increase so he submitted a request to DFAS for a recomputation of his retired pay using the High-3 formula and the base pay he would have received as a MSG/E-8 during his last 3 years of active duty service.  In response, a Military Pay Technician for Retired and Annuity Pay at DFAS sent him a letter, dated 11 June 2009, which explained how his retired pay was computed and denied his request.  A review of this letter shows this computation was based on his initial retired rank/pay grade of SFC/E-7 and resulted in a monthly gross pay amount of $2,166.00, the same amount he received prior to his retroactive promotion.

12.  Title 10, U.S. Code, section 1407(a), states that 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.  Section 1407(b) states that, except as provided for in section 1407(f) (pertaining to certain enlisted members), the retired pay base of a person under this section is the person's high 3-year average determined under subsection (c) (Regular service) or (d) (non-Regular service) (also known as High-3).

13.  Title 10, U.S. Code, section 1407(c), states that the general rule is the high 3-year average of a member entitled to retired pay under any provision of law other than sections 1204 (members on active duty for 30 days or less or on inactive-duty training: retirement), 1206 (members on active duty for 30 days or less or on inactive-duty training:  separation), or 12731 (non-Regular retirement) of this title is the amount equal to the total amount of monthly basic pay to which the member was entitled for the 36 months (whether or not consecutive) out of all the months of active service of the member for which the monthly basic pay to which the member was entitled was the highest, divided by 36.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his retired pay should be recomputed using the High-3 formula and his corrected retirement rank/pay grade of MSG/E-8 was carefully considered and determined to have merit.

2.  The evidence clearly shows he was retroactively promoted from the rank/pay grade of SFC/E-7 to MSG/E-8 with an effective date and date of rank of 28 June 2006.  As a result, his original retirement orders showing he was retired as an SFC/E-7 were revoked and he was issued new orders retiring him as an 
MSG/E-8.

3.  The evidence shows DFAS made a partial correction to his MILPAY record by paying him for the difference in entitlements between SFC/E-7 and MSG/E-8 during the period 28 June 2006 through 31 August 2008, the date he retired.  However, DFAS failed to recompute his retired pay using the High-3 formula and the base pay he would have received as an MSG/E-8 during his last 3 years of active duty service.  As a result, he is still receiving retired pay based upon his initial retired rank/pay grade of SFC/E-7.

4.  In view of the foregoing, an audit of his pay history should be conducted, his retired pay should be recomputed using the High-3 formula and the base pay he would have received as a MSG/E-8, and he should be paid any and all back retired pay to which he is entitled as a result of this correction.

BOARD VOTE:

____X____  ____X____  _____X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is 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 the applicant's promotion to MSG/E-8 was properly effected prior to his retirement on 1 September 2008 and by DFAS:

* conducting an audit of his pay history
* recomputing his retired pay using the High-3 formula and the base pay he would have received as an MSG/E-8
* paying him any and all back retired pay to which he is entitled 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.
ABCMR Record of Proceedings (cont)                                         AR20100013636



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ABCMR Record of Proceedings (cont)                                         AR20100013636



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