IN THE CASE OF:	  

		BOARD DATE:	    17 March 2011

		DOCKET NUMBER:  AR20100015586 


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 his military record to show his correct retired pay calculation, basic active service date (BASD), and all monies owed him as result of his service in the ranks of second lieutenant (2LT/O-1E), first lieutenant (1LT/O-2E), and captain (CPT/O-3E).

2.  The applicant states:

* his retired pay calculation should be based on 30 years, 2 months, and 22 days service instead of 29 years, 9 months, and 18 days
* his BASD should reflect 13 July 1980 instead of 24 August 1980
* he is entitled to back pay as an O-1E, O-2E, and O-3E

3.  The applicant provides the following documents:

* Self-authored statement
* DA Form 2142 (Pay Inquiry)
* E-mail dated 27 April 2010
* DFAS Form 702 (Defense Finance and Accounting Service Military Leave and Earnings Statement) for the periods April 2010, September 1984, February 1986, January 1989, and January 1996
* DFAS Statement dated 7 May 2010
* Service Computation for Retirement document dated 13 January 2010
* 
Retirement order
* Amendment order
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Active duty (training) order
* DA Form 1506 (Statement of Service - For Computation of Length of Service for Pay Purposes)
* Initial DD Form 149 (Application for Correction of Military Record) with enclosures

CONSIDERATION OF EVIDENCE:

1.  The applicant's military record shows he initially enlisted in the U.S. Army Reserve (USAR) on 3 February 1976, for a 6 year period.  He continued to serve in a Reserve Component until he was discharged on 14 June 1976, for the purpose of immediate enlistment in the Regular Army (RA), having completed 4 months and 12 days military service for pay.

2.  On 15 June 1976, the applicant enlisted in the RA and entered active duty.  He continued to serve until he was honorably released from active duty on         14 June 1980, in the rank of sergeant (SGT/E-5).  The applicant's military record does not include an enlistment contract or DD Form 214 documenting this period of active service. 

3.  Subsequent to his release from active duty on 14 June 1980, he was transferred to the USAR Control Group (Reinforcement).  He remained in this component until 2 February 1982.  He completed 1 year, 7 months, and 18 days of inactive service. 

4.  On 3 February 1982, he enlisted in the USAR and he was assigned to the USAR Control Group (Individual Ready Reserve, or IRR).  He remained in this component for 4 months and 26 days.  He then enlisted in the USAR as a cadet in the ROTC (Reserve Officers' Training Corps) program on 29 June 1982.  He attended Eastern Michigan University on a 2-year ROTC scholarship.  

5.  He was appointed as a Regular Army Aviation second lieutenant (2LT) and executed an oath of office with concurrent call to active duty on 24 August 1984.  He entered active duty on 24 August 1984 and completed the Officer Rotary Wing Aviator Course.


6.  He served in staff and/or leadership positions, within and outside continental United States, and he was promoted to the following ranks on the dates indicated:

* 1LT - 24 February 1986
* CPT - 1 January 1989
* major (MAJ/O-4) - 1 January 1996
* lieutenant colonel (LTC/O-5) - 1 April 2001
* colonel (COL/O-6) - 1 September 2006

7.  On 17 August 2009, the U.S. Army Installation Management Command, Headquarters, U.S. Army Garrison, Fort Rucker, AL, issued Orders Number 229-0502 which directed the applicant's retirement on 30 April 2010.  It also includes the following information:

* "Vol retirement:  29 years, 9 months, 18 days
* Section 1405:  30 years, 2 months, 22 days
* Basic Pay:  34 years, 2 months, 28 days
* Completed over 4 years of active service as Enl or WO: N"

8.  On 21 August 2009, the U.S. Army Installation Management Command, Headquarters, U. S. Army Garrison, Fort Rucker, AL, issued Orders Number 223-0500 which amended Order Number 229-0502 to show the entries:

* "As reads:  Completed over 4 years of active service as Enl or WO: N
* How changed:  Completed over 4 years of active service as Enl or WO:  Y

9.  In connection with his retirement, a DA Form 1506 prepared on the applicant shows he served in the USAR as indicated:

   a.  in inactive service from 15 June 1980 to 2 February 1982, totaling 1 year, 7 months, and 18 days;

   b.  in inactive service in the IRR from 3 February to 28 June 1982, totaling 4 months and 26 days;

   c.  in inactive service in the Reserve Officers' Training Corps (ROTC) from 29 June to 6 July 1982, totaling 8 days;

   d.  in inactive service in the Simultaneous Membership Program (SMP) from 7 July 1982 to 31 May 1983, totaling 10 months and 24 days;

   e.  in active service in the SMP from 1 June to 11 July 1983, totaling 1 month and 11 days; and

	f.  in inactive service from 12 July 1983 to 23 August 1984.

10.  On 30 April 2010, the applicant was honorably retired from active duty.  The
DD Form 214 he was issued includes the following entries in the items indicated:

* Item 12c (Net Active Service this Period) - "25 years, 8 months, 7 days"
* Item 12d (Total Prior Active Service) - "4 years, 1 month, 11 days"
* Item 12e (Total Prior Inactive Service) - "4 years, 5 months, 10 days"

11.  The applicant provides copies of his active duty LESs covering his initial periods of service in the ranks of 1LT, 2LT, CPT, and MAJ.  Item 3 (Pay Grade) of these documents covering the periods indicated clearly shows he received basic pay in the following grades:

	a.  From 1 - 30 September 1984; O-1; his basic pay is listed as $1,437.60.  The Military Pay for 1984 listed the basic pay for an O-1 and O-1E as $1,437.60. 

	b.  From 1 - 28 February 1986 - O-2; his basic pay is listed as $1,636.45.  The Military Pay for 1986 listed the basic pay for an O-2 and O-2E as $1,636.45. 

	c.  From 1- 31 January 1989 - O-3; his basic pay is listed as $2,676.30.  The Military Pay for 1989 listed the basic pay for an O-3 and O-3E as $2,676.30.

	d.  From 1-31 January 1996 - O-4; his basic pay is listed as $4,035.90.  

12.  He also provides his April 2010 LES which shows his PEBD (Pay Entry Basic date) as 3 February 1976 (the date he initially enlisted in the USAR) and that he was receiving pay based on 34 years of total service.

13.  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.  Chapter 2 covers the preparation of the DD Form 214.  It states:

	a.  Items 4a and 4b show the active duty grade or rank and pay grade at the time of separation.


	b.  Item 12 shows the Record of Service.  Extreme care is used when completing this block since post-service benefits, final pay, retirement credit, and so forth are based on this information.  A breakdown of entries in Item 12 is as follows:

		(1).  Item 12a shows the beginning date of the continuous period of active duty for issuance of this DD Form 214, for which a DD Form 214 was not previously issued.

		(2).  Item 12b shows the Soldier’s transition date.  This date may not be the contractual date if Soldier is separated early, voluntarily extends, or is extended for make-up of lost time, or retained on active duty for the convenience of the Government.

		(3).  Item 12c shows the amount of service this period, computed by subtracting item 12a from 12b.  Lost time under 10 USC 972 and non-creditable time after ETS, if any, are deducted and such time will be identified in block 18. 

		(4).  Item 12d, obtained from previously issued DD Forms 214, shows the total amount of prior active military service less lost time, if any.  If not applicable, enter "00 00 00."

14.  The ROTC/SMP is a voluntary officer training program designed to increase the number of ROTC officers available for Reserve Forces Duty.  Subject to limitations, it permits an ROTC cadet to train in the ROTC Advanced Course while simultaneously participating as an officer-trainee in paid training assemblies with a USAR troop program unit.  To be eligible for ROTC/SMP participation, a cadet must be enrolled in the ROTC Advanced Course nonscholarship program; be assigned to a verified officer-trainee position in a TPU; meet the Army body composition/weight control standards; and agree to volunteer for commissioning under the provisions of the ROTC Early Commissioning Program on successful completion of the ROTC Advanced Course.

15.  Public Law 104-201, section 507, dated 23 September 1996, amended the provisions of the law to provide service credit for the SMP retroactive to 1 August 1979, when SMP actually began.  The revisions will result in no increase in pay, retired or retainer pay before the date of enactment, 23 September 1996.  If the credit results in a higher basic pay due to a change in the PEBD, the effective date of the increase will be 23 September 1996.


416.  DOD Pay Regulation, Volume 7A (Active Duty & Reserve Pay), Chapter 1 - Creditable Service contains information about the following subjects:  Service Which Is Creditable, Service Not Creditable, Active Enlisted and/or Warrant Officer Service for Members in Basic Pay Grades 0-1E, 0-2E, or 0-3E, and Computations of Creditable Service.  It states:

	a.  Section 010101 (service which is creditable) states for most members who enter and serve on active duty without a break in service, the basic pay date is the date the member enters active or inactive service.  If, however, there is a break in service, then the time between periods of service usually is not included. Also, there are statutory periods when service in a particular component may not be counted.  

	b.  Section 010102 (Service not creditable) states prior provisions of law excluded the Simultaneous Membership Program from creditable service for commissioned officers effective 13 October 1964.  Public Law 104-201, section 507, dated 23 September 1996, amended these provisions to provide service credit retroactive to 1 August 1979.  These amendments, as referenced in subparagraph 010101.D.10, resulted in no increase in pay, retired pay, or retainer pay before the date of enactment.  

	c.  Section 010103 states commissioned officers with over 4 years of prior active service as an enlisted member, warrant officer, or combined service in both grades are entitled to count such service for purposes of computing basic pay for longevity purposes.  Such prior service includes all active service, in either the Regular or Reserve Component or both (i.e., active duty for training in enlisted or warrant officer status, annual Reserve training duty, and full-time National Guard duty).  Service on active duty or active duty for training for at least 4 years and 1 day satisfies the over 4 years of service requirement under this section.

	d.  Section 010103A(2) (Creditable Prior Enlisted Service) states effective 
20 May 1958, commissioned officers in pay grades O-1, O-2, or O-3 who are credited with over 4 years (i.e., at least 4 years and 1 day) of prior active service as an enlisted member are entitled to the special rate of basic pay for pay grade O-1E, O-2E, or O-3E.

	e.  Section 010104 (Computation of creditable service) states all basic pay date computations start from the date of the member’s most recent entry on duty without a break in service.  For officers, it is the date of acceptance of a commission.  


DISCUSSION AND CONCLUSIONS:

1.  The applicant requests correction of his records to show his correct retired pay calculation, BASD, and entitlement to all monies owed for his service in pay grades O-1E, O-2E, and O-3E.

2.  With respect to his pay, the evidence of record shows the applicant had previously completed 4 years of creditable active service as an enlisted member in 1980; and 1 month and 11 days of active service in the SMP in 1982, for a total of 4 years, 1 month, and 11 days, prior to accepting a commission and serving on active duty in an officer status for over 25 additional years.  According to the LESs he provided, he appears to have received the correct basic pay rate for each of his contested grades based on the Military Pay Table for the years in question.  He does not appear to be entitled to any additional pay.  

3.  With respect to his BASD, the evidence of record shows he entered active duty as a commissioned officer on 24 August 1984.  This date is correctly shown in item 12a of his DD Form 214, which is meant to reflect the date of his last entry on active duty, not his BASD.  Additionally, he had previously completed 
4 years, 1 month, and 11 days of prior active service and 4 years, 5 months, and 1 day of prior inactive service, both of which are correctly shown on his 
DD Form 214. 

4.  He completed 34 years, 2 months, and 28 days of total service (active and inactive).  As shown on his April 2010 LES, he received basic pay based on this service.  However, upon retirement, his retired pay was computed based on his total active service of 29 years, 9 months, and 18 days.  Both periods of service are correctly shown on his retirement order. 

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)                                         AR20100015586





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100015586



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1