IN THE CASE OF:	  

		BOARD DATE:	  16 December 2010

		DOCKET NUMBER:  AR20100014482 


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 her records to show she was retired in the pay grade of O-3E and payment of all monies owed to her as a result.

2.  The applicant states her retired pay is based on her retirement in pay grade O-3, but it should be based on the pay grade of O-3E as she served 8 years as an enlisted member.  She wants her retired pay adjusted to reflect her retirement as an O-3E on 31 January 1990, payment of all monies owed to her as a result, and correction of her DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 31 January 1990 to show her pay grade as
O-3E.

3.  The applicant provides:

* DD Form 4 (Enlistment Contract - Armed Forces of the United States), dated 29 December 1969
* DA Form 3286-1, -2, and -3 (Statements of Enlistment), all dated
29 December 1969
* DD Form 373 (Consent, Declaration of Parent or Legal Guardian), dated 29 October 1969
* Two DA Forms 1695 (Oath of Extension of Enlistment), dated
29 December 1969 and 24 July 1973
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 23 July 1973
* DD Form 214 (Report of Separation from Active duty) for the period ending 21 February 1978
* DD Form 214 for the period ending 31 January 1990
* DA Form 3681-1 (JUMPS Army - Leave and Earnings Statement (LES)) for the period 1-31 January 1990
* DA Form 3713 (Data for Retired Pay), dated 15 August 1989
* Orders S155-6 [retirement orders], dated 15 August 1989
* Letter from the Retired Pay Operations, Defense Finance and Accounting Service (DFAS), Indianapolis, IN, with enclosures, dated 14 February 1990
* Letter to the Fort Richardson, AK, Retiree Services Officer (RSO), with enclosures, dated 22 February 2010

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's records show she enlisted in the Regular Army (RA) on 29 December 1969 and she held military occupational specialty 74F (Computer Programmer).  On 23 July 1973, she was honorably discharged for the purpose of immediate reenlistment.  The DD Form 214 she was issued for this period contains the following entries:

* Item 5a (Grade, Rate or Rank) shows "SP6"
* Item 5b (Pay Grade) shows "E-6
* Item 22a (Net Service this Period) shows "3 years, 6 months, 25 days"

3.  She reenlisted in the RA on 24 July 1973 and she was honorably discharged on 21 February 1978 to accept commission in the Army.  The DD Form 214 she was issued for this period contains the following entries:

* Item 6a (Grade, Rate or Rank) shows "SP6"
* Item 6b (Pay Grade) shows "E-6"
* Item 18a (Net Active Service this Period) shows "4 years, 6 months, 28 days"
* Item 18b (Prior Active Service) shows "3 years, 6 months, 25 days"
* Item 18c (Total Active Service) shows "8 years, 1 month, 23 days"

4.  She was appointed as a U.S. Army Reserve (USAR) second lieutenant and she executed an oath of office on 22 February 1978 with concurrent call to active duty.  She subsequently served in various command or staff positions, within and outside the continental United States, and she attained the rank/grade of captain (CPT)/O-3.

5.  Her records contain DA Form 3713, U.S. Total Army Personnel Command, Alexandria, VA, dated 15 August 1989, wherein item 3 (Retired Grade) contains the entry "CPT" and item 10 (Retired Pay) contains the entry "CPT."  This form is signed by the Chief of the RSO.

6.  Orders 171-12, issued by Headquarters, 6th Infantry Division and U.S. Army Garrison, Fort Richardson, AK, dated 7 September 1989, wherein she was released from active duty effective 31 January 1990 and placed on the retired list, in the retired grade of "Captain/O-3."

7.  On 31 January 1990, she was honorably retired from active duty and placed on the retired list effective 1 February 1990.  The DD Form 214 she was issued for this period contains the following entries:

* Item 4a (Grade, Rate or Rank) shows "CPT"
* Item 4b (Pay Grade) shows "O-3"
* Item 12c (Net Active Service this Period) shows "11 years, 11 months, 9 days"
* Item 12d (Prior Active Service) shows "8 years, 1 month, 23 days"

8.  During the processing of this case, DFAS was asked to verify the applicant's retired pay grade.  By email, dated 18 October 2010, a DFAS official verified that the applicant's retired pay grade is "Captain, O-3."

9.  The applicant provides her last active duty LES covering the period
1 - 31 January 1990.  Item 3 (Pay Grade) of this form shows "O-3E" and clearly reflects her receiving the basic pay of that grade at the time of retirement.

10.  DOD Financial Management Regulation, dated January 2010, volume 7A, chapter 1, states, in pertinent part, "Effective 20 May 1958, commissioned officers in pay grades O-1, O-2, or O-3 who are credited with over 4 years of prior service as an enlisted member are entitled to the special rate of basic pay for pay grade O-1E, O-2E, or O-3E."
11.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty to include attendance at basic and advanced training.  It also states, in pertinent part, that the DD Form 214 will be prepared for all personnel at the time of their retirement, discharge, or release from active duty.  The active duty grade or rank and pay grade at the time of separation is entered in items 4a and 4b.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests correction of her records to show she was retired in the pay grade of O-3E and payment of all monies owed her.

2.  The evidence of record shows the applicant served on active duty for over 8 years as an enlisted member prior to accepting a commission and serving on active duty in an officer status for almost 12 additional years.  Due to her prior enlisted status, she was correctly receiving basic pay in the pay grade of O-3E at the time of her retirement.

3.  It appears that during the computation of her retired pay her retired pay was calculated using the pay rate of O-3 instead of O-3E.  Therefore, the applicant is entitled to correction of her records to reflect her retired pay as O-3E.

4.  With the respect to correction of the applicant's DD Form 214, as O-3E is a pay rate and not a pay grade, her DD Form 214 correctly shows her pay grade as O-3.  Therefore, the applicant is not entitled to correction of her DD Form 214.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ___X____  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION







BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: 

	a.  amending Orders 171-12, issued by Headquarters, 6th Infantry Division and U.S. Army Garrison, Fort Richardson, AK, on 7 September 1989 to show her retirement grade as "Captain/O-3E";

	b.  amending item 10 of the applicant's DA Form 3713, dated 15 August 1989, to show her retired pay rate of "CPT/O-3E"; and

	c.  directing DFAS to audit her pay records and, if applicable, paying her all back pay due as a result of this correction.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to correction of her DD Form 214.

      __________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)                                         AR20100014482



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100014482



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1