BOARD DATE:	  11 January 2011

		DOCKET NUMBER:  AR20100014180 


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, the amount of his retired pay be recalculated by increasing his years of service from 24 years to 29 years by:

* Adding his Reserve service from 1986 to 1989
* Adding his service on the Temporary Disability Retired List (TDRL) from 2003 to 2006

2.  The applicant states:

* The Defense Finance and Accounting Service (DFAS) refuses to correct his time in service for pay because they do not understand how to compute retired pay in accordance with Title 37, U.S. Code, chapter 3, section 205
* DFAS is computing his retired pay using Active Federal Service (AFS) of 24 years instead of 29 years time in service for retired pay
* His retirement pay is short approximately $577.00 per month and DFAS now owes him approximately $8700.00 in back pay
* If the Army Board for Correction of Military (ABCMR) had done its job last time the amount would not be this much and he would not have suffered as badly as he has
* The ABCMR fixed this same problem when he was medically discharged in 2003 and placed on the TDRL 



3.  The applicant provides:

* Retiree Account Statement
* DFAS letters, dated 3 May 2010 and 27 July 2010
* Letter, dated 24 June 2009, from the U.S. Army Human Resources Command, in St. Louis, MO
* DFAS Military Leave and Earnings Statement
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 31 December 2008
* Amended retirement orders
* Retirement orders
* U.S. Army Reserve (USAR) Personnel Command Chronological Statement of Retirement Points 

CONSIDERATION OF EVIDENCE:

1.  The applicant is a retired Regular Army sergeant first class.  His pertinent record of service, as shown on his USAR Chronological Statement of Retirement Points, includes the following:

			Component						Period					Yr  Mo  Day
* Delayed Entry Program		19790921-19800205		00  04  16
* Regular Army				19800206-19860701		06  04  26
* USAR                                 19860921-19880920          02  00  00
* USMCR                              19880921-19890515          00  07  25
* Regular Army				19890516-20031112		14  05  28
* TDRL							20031113-20060308		02  03  24
* Regular Army				20060621-20081231		02  06  11

2.  The applicant enlisted in the USAR for 3 years on 2 July 1986.  His USAR Chronological Statement of Retirement Points, dated 9 December 2010, shows Reserve component service from 2 July 1986 to 15 May 1989; however, his records contain an NGB (National Guard Bureau) Form 22 (Report of Separation and Record of Service) which shows he served in the California Army National Guard (CAARNG) from 28 July 1986 to 27 July 1987, a period of exactly 1 year.  This form also shows he was separated from the CAARNG and as a Reserve of the Army.  This means he had no further military connection from 28 July 1987 until he enlisted in the Regular Army on 16 May 1989.

3.  The applicant's USAR Chronological Statement of Retirement Points also shows that, while he was a member of the Reserve components, he performed 42 days of active service.

4.  During his second period of Regular Army service from 16 May 1989 to 
12 November 2003, the applicant underwent physical disability evaluation and was placed on the TDRL on 13 November 2003.  Following his placement on the TDRL, the applicant submitted a request to this Board seeking correction of his time in service as shown on his DD Form 214 of 12 November 2003.  The Board granted his request and a DD Form 215 (Correction to DD Form 214) was issued to show in Item 12d (Total Prior Active Service) 0006 years, 06 months, and 08 days.  This time accounts for his first period of Regular Army active service and his 42 days of active service while in the Reserve components.

5.  During a periodic TDRL disability review, the applicant was found to be fit for duty and was removed from the TDRL on 8 March 2006; however, he did not immediately re-enlist in the Regular Army.  Instead, he waited until 21 June 2006.

6.  When the applicant finally retired from the Regular Army for length of service on 31 December 2010, he qualified for regular retired pay.  Item 12c (Net Active Service This Period) of his DD Form 214 for the period ending 31 December 2008 shows he completed 2 years, 6 months, and 10 days.  Item 12d (Total Prior Active Service) of this DD Form 214 shows he completed 21 years and 6 days of prior active service.  Item 12e (Total Prior Inactive Service) of this DD Form 214 shows he completed 3 years, 1 month, and 16 days of prior inactive service.

7.  The mechanism by which DFAS computes and pays retired pay is the retirement order published for each retiree.  Orders 169-0286, Headquarters, U.S. Army Garrison, Fort Bragg, NC, dated 17 June 2008, directed the applicant's retirement effective 31 December 2008.  The statute authorizing his retirement was cited as 10 USC §3914; and "Vol[untary] retirement:  23 years, 
6 months, 16 days."  His years of service under 10 USC §1405 were shown as 24 years, 4 months, 26 days; his basic pay rate was based on 29 years, 
3 months, 11 days.

8.  The applicant provided a DFAS Military Leave and Earnings Statement for the period 1-31 December 2008 which shows his years of service is "29" and his base pay is $4351.20.  

9.  A letter, dated 27 July 2010, from DFAS to a Member of Congress states, in pertinent part, the applicant's military records reflect he has 29 years, 3 months, and 11 days for his service base pay; the Department of the Army retired the applicant with 24 years, 4 months, and 26 days of total active service (service percent multiplier); and the service percent multiplier is used when calculating military retired pay entitlements.  The letter also states based on the orders from the Department of the Army the applicant's military retired pay is correct.

10.  A Basic Pay Chart (effective 1 January 2008) shows the basic pay for an E-7 with over 26, 28, 30, 32, 34, 36, 38, and 40 years is $4351.20. 

11.  Information obtained from a DFAS website states retired pay amounts are determined by multiplying the service factor (for retirees with less than 30 years, the service factor is 2.5 percent times years of service) by the active duty base pay at the time of retirement.  By law, the gross retired pay must be rounded down to a whole dollar amount.  Years of service for enlisted retirements include:

* Credit for each full month of service as one-twelfth (0.083) of a year
* All active service
* Active duty for training performed after 9 August 1956
* Any constructive service earned for a minority or short-term enlistment completed prior to 31 December 1977
* Drills performed while in the Active Reserves
  
12.  If the retiree entered the service before 8 September 1980, base pay for retirement is the same as last active duty pay (allowances are not considered).

13.  Title 10, U. S. Code, section 1405, states the years of service of the member for the purpose of computing retired pay are computed by adding (1) the member’s years of active service; (2) the years of service, not included in clause (1), with which the member was entitled to be credited on 31 May 1958; and (3) the years of service, not included in clause (1) or (2), with which the member would be entitled to be credited under section 12733 of this title if the member were entitled to retired pay under section 12731 (non-regular retirement) of this Title.

14.  Title 37, U.S. Code, chapter 3, section 205 (Computation: service creditable) states, in pertinent part, for the purpose of computing the basic pay of a member of a uniformed service, his years of service are computed by adding all periods of active service as an enlisted member of a uniformed service; all periods during which he was enlisted of a reserve component of a uniformed service; and all periods while on a TDRL.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends DFAS refuses to correct his years of service for retired pay from 24 to 29 years because they do not understand how to compute retired pay.

2.  Evidence of record shows the applicant completed 23 years, 6 months, and 16 days of active service, but he was credited at retirement with 24 years, 4 months, and 26 days of total active service.

3.  The several military pay and personnel systems use a variety of dates to determine various entitlements.  

   a.  One date is the date that denotes how much service a member has for the purpose of determining longevity pay rates.  The Army refers to this as the PEBD (Pay Entry Basic Date).  For most Soldiers who enter and serve on active duty without a break in service, the PEBD is the date the Soldier enters active service.  In the applicant's case, his enlistment in the DEP counted as his PEBD.  This gives him 29-plus years from 19790921-20081231.

	b.  Under law, there are three military retirement systems.  Soldiers are placed in a retirement system based on their DIEMS (Date of Initial Entry into Military Service) date.  If the Soldier entered the service prior to September 1980, the Soldier is eligible for the Final Pay retirement system.  The applicant's final base pay was $4351.20.

	c.  To arrive at the applicant's monthly retired pay, his final base pay is multiplied by a service factor of 2.5 percent times his years of active service, with each full month of service beyond a year credited as one-twelfth (0.083) of a year.

4.  Time the applicant spent on the TDRL and in the Reserve components not on active duty is not included in the calculation of his years of active service when applying the service factor of 2.5 percent.  From this review, it appears the applicant is being overpaid based on a miscalculation of his total active service.

5.  It is the policy of this Board not to make an applicant worse off for applying for a records correction.  In that regard, his retired pay, based on basic pay over 29 years ($4351.20) multiplied by active service of 24 years, 4 months, and 
26 days and a service factor of 2.5, is correct.









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)                                         AR20100014180



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ABCMR Record of Proceedings (cont)                                         AR20100014180



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