IN THE CASE OF:
BOARD DATE: 24 March 2011
DOCKET NUMBER: AR20100017851
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 records to show he entered active Army service in the pay rate of O-1E [Enlisted] instead of O-1.
2. The applicant states:
* He entered active Army service in August 1971 in the wrong pay grade
* He was commissioned as a second lieutenant (2LT)/O-1 rather than an
O-1E
* He should have entered in the pay grade for those personnel who completed 4 years of active enlisted service prior to their officer service
* This pay error affects his current retired pay as well as the pay he would have received during his tour of duty as an officer in the Army
3. The applicant further states:
* He was a board member of the Army Board for Correction of Military Records (ABCMR) from November 2005 to May 2009
* He discussed his situation with another board member who indicated that if he was discharged within 90 days of his tour completion it should have been treated as a complete tour (his U.S. Navy service)
* He requested the higher pay grade and he was told since he was short of a full active tour he was not eligible for the higher pay grade
* He was discharged early from the Navy because he was stationed on a ship off the coast of Africa that would not be in port again closer to his discharge date
* He returned from Africa in late March 1967 and discharged in April 1967
* His Navy DD Form 214 (Report of Transfer or Discharge) states, in part, "Released from active duty within three months of expiration of USN contract"
* If this error is corrected there should be a correction in all financial records dating back to August 1971 through his current retired pay
* His pay at retirement would have been higher and his current retired pay would also be higher today
4. The applicant provides:
* his Army DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 30 September 1987
* his U.S. Navy DD Form 214 for the period ending 10 April 1967
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant enlisted in the U.S. Navy on 7 June 1963 for a period of
4 years. He was released from active duty on 10 April 1967. His DD Form 214 for the period ending 10 April 1967 shows he was released from active duty within three months of his expiration of U.S. Navy contract and concurrent transfer to the U.S. Naval Reserve.
3. Having 3 years, 10 months, and 4 days of prior enlisted service, the applicant was commissioned a second lieutenant in the Regular Army (RA) on 1 August 1971. On 30 September 1987, he was honorably retired in the rank of captain by reason of length of service.
4. Records from the Defense Finance and Accounting Service (DFAS) indicate he is currently being paid as an O-3 with 22 years and 2 months of service.
5. The Department of Defense Financial Management Regulation, Volume 7A, 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. 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contentions were carefully considered. However, he did not have over 4 years of active service as an enlisted member prior to his commission in the RA on 1 August 1971 as required by law.
2. Although his DD Form 214 issued at the time of his release from active Navy service shows he was released within 3 months of his expiration of his Navy contract, there is no provision for adding time not actually served to a service member's total active service time. In addition, even if he had served until his normal expiration term of service, he would have been separated after completing exactly 4 years of service, not over 4 years of service. Therefore, in view of the foregoing, there is no basis for granting his request.
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) AR20100017851
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20100017851
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