IN THE CASE OF:	  

		BOARD DATE:	  24 March 2011

		DOCKET NUMBER:  AR20100019737 


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 records to show that his retired pay is based on the "Final Pay Plan" rather than the "High-36 Plan."

2.  The applicant states he served on active duty in the U.S. Air Force from
3 March 1975 to 21 August 1978.  He then served in the U.S. Army and his Pay Entry Basic Date (PEBD) was established as 8 June 1986.  He asserts that his PEBD should be adjusted to 3 March 1975 and his retired pay should be recomputed and based on the "Final Pay Plan."

3.  The applicant provides copies of his 21 August 1978 DD Form 214 (Report of Separation from Active Duty) in support of his request.

CONSIDERATION OF EVIDENCE:

1.  A DD Form 214 shows the applicant entered active duty in the Air Force (Regular) on 3 March 1975, was honorably released from active duty on
21 August 1978, and transferred to the Air Force (Reserve) to complete his Reserve obligation that terminated on 7 October 1980.  He had completed
3 years, 5 months, and 19 days of net active service this period.

2.  The applicant had a break in service from 8 October 1980 through 6 August 1992.


3.  U.S. Total Army Personnel Command, St. Louis, MO, memorandum, dated
28 July 1992, and DA Form 71 (Oath of Office - Military Personnel) show the applicant was appointed as a Reserve commissioned officer of the Army in the rank of second lieutenant in the Medical Services Corps on 7 August 1992.

4.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant entered active duty as a member of the U.S. Army Reserve (USAR) on 5 September 1992, was honorably released from active duty on 19 November 1999, and transferred to the USAR Control Group (Reinforcement) to complete his Reserve obligation that terminated on 5 September 2000.  He had completed 7 years, 2 months, and 15 days of net active service this period.

5.  U.S. Total Army Personnel Command, St. Louis, MO, memorandum, dated
19 October 1999, shows the applicant was appointed as a Reserve commissioned officer of the Army in the rank of captain in the Chaplain Corps.

6.  A DD Form 214 shows the applicant entered active duty on 27 November 1999, was honorably retired from active duty on 30 June 2010, and transferred to the USAR Control Group (Retired).  He had completed 10 years, 7 months, and
4 days of net active service this period.

7.  An Integrated Total Army Data Base (ITAPDB), Soldier Detail, shows the following service dates for the applicant:

* DIEMS [Date Initially Entered Military Service] - 8 June 1986
* PEBD - 8 June 1986

8.  Headquarters, U.S. Army Maneuver Support Center and Fort Leonard Wood, MO, Orders 269-1302, paragraph 2, dated 26 September 2009, as amended by Orders 271-1304, dated 28 September 2009, retired the applicant from active duty in the rank of major/pay grade O-4 effective 30 June 2010 and placed him on the retired list on 1 July 2010.

   a.  He was credited with 21 years, 3 months, and 8 days of active service for voluntary retirement; 21 years, 4 months, and 18 days under Title 10, U.S. Code, section 1405; and 24 years, 0 months, and 16 days for basic pay.

   b.  The "For Army Use" section shows "Date initially entered military:  08 June 1986."

9.  In the processing of this case, an advisory opinion was obtained from the Chief, Veterans Inquiry Branch, Army Personnel Records Division, U.S. Army Human Resources Command, Fort Knox, KY.
   a.  The advisory official does not recommend administrative relief.

   b.  The advisory official notes the applicant entered the Air Force on 3 March 1975, was released from active duty on 21 August 1978, and his Reserve obligation terminated on 7 October 1980.  She states the applicant had a break in service from 8 October 1980 to 7 August 1992, when he joined the U.S. Army.  She adds that, based on the applicant's prior service in the Air Force and his break in service, his PEBD was adjusted to 8 June 1986.

10.  On 14 February 2011, the applicant was provided a copy of the advisory opinion.

11.  On 18 February 2011, the applicant responded that the advisory opinion addressed his PEBD, while his inquiry and focus [now] is for correction of his DIEMS and changing the pay formula under which his retired pay was calculated (i.e., from the "High-36 Plan" to the "Final Pay Plan").

	a.  He states that based on his enlistment in the Air Force, his DIEMS should be in 1975; however, it reflects 1986.

	b.  He provides quotes from:

		(1)  Title 10, U.S. Code, Subtitle A, Part II, Chapter 71, subsection 1411(a), Construction of "First Became a Member, that states for purposes of this chapter and other provisions of law providing for computation of retired or retainer pay of members of the uniformed services, a person shall be considered to first become a member of a uniformed service on the date the person is first enlisted, inducted, or appointed in a uniform service.

		(2)  The Under Secretary of Defense, Personnel and Readiness website with information that explains the "Final Pay Plan" versus "High-36 Plan."  It states, "To decide which method applies to you, you must determine the date that you FIRST entered the military.  This date is called the DIEMS (Date of Initial Entry to Military Service) or DIEUS (Date of Initial Entry to Uniformed Services).  The date you first entered the military is the first time you enlisted or joined the active or reserves.  This date is fixed---it does not change.  Departing the military and rejoining does not affect your DIEMS."

	c.  The applicant concludes that the U.S. Code and regulatory guidance support his contention that his retired pay should be based on the "Final Pay Plan" rather than on the "High-36 Plan."

12.  Title 10, U.S. Code, section 1411 (Rules of construction), defines construction of "First Became a Member" and shows that for purposes of this chapter and other provisions of law providing for computation of retired or retainer pay of members of the uniformed services, a person shall be considered to first become a member of a uniformed service on the date the person is first enlisted, inducted, or appointed in a uniform service.

13.  Department of Defense Financial Management Regulation 7000.14-R, Volume 7B (Retired Pay), chapter 1 (Initial Entitlements - Retirements), governs retired pay.

	a.  Paragraph 0101 (Service Creditable for Retirement Purposes), subparagraph 010101 (General), in pertinent part, states a member who continues on active duty after completion of 20 years of service may be retired for voluntary or involuntary reasons.

	b.  Paragraph 0301 (Basic Computation), subparagraph 030101A (Retired Pay Base), shows the retired pay base is determined using the active duty basic pay entitlement of the member.

		(1)  For individuals who first became members before 8 September 1980, the retired or retainer pay base is generally the basic pay of the member on the day before retirement.

		(2)  For individuals who first became members after 7 September 1980, the retired or retainer pay base is generally the average of the highest 36 months of basic pay received.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his DIEMS should be corrected from
8 June 1986 to 3 March 1975 and, as a result of the correction, his retired pay should be recomputed under the "Final Pay Plan" with payment of all retired back pay due (less any withholdings).

2.  Records show the applicant initially entered active duty in the U.S. Air Force on 3 March 1975 and he was honorably discharged from the U.S. Air Force (Reserve) on 7 October 1980.

3.  He had a break in service from 8 October 1980 through 6 August 1992.

4.  Records show the applicant was appointed as a Reserve commissioned officer in the Army on 7 August 1992.  He served continuously in either an active reserve or active duty status until he retired from active duty on 30 June 2010.

5.  Records show the applicant's PEBD is 8 June 1986.  However, the orders that retired the applicant from active duty show he was credited with completing
24 years, 0 months, and 16 days of service for basic pay purposes.

   a.  A calculation of the applicant's PEBD shows the following:

	2010  06  30  date of retirement
         -     24  00  16  creditable service for basic pay purposes
         =    86  06  14  (Correct) PEBD = 14 June 1986

   b.  Despite this error in the applicant's PEBD, no action is being taken to correct the PEBD shown in his Army records, as that PEBD favors the applicant.

6.  Records show the date the applicant first entered military service was on
3 March 1975.  However, the ITAPDB (Soldier Detail) and applicant's retirement orders show a DIEMS of 8 June 1986, which is in error.  Therefore, it would be appropriate to correct the applicant's records to show a DIEMS of 3 March 1975.

7.  Because of the error in the applicant's DIEMS and based on the guidance contained in Department of Defense Financial Management Regulation
7000.14-R, volume 7B, paragraph 030101A, it would be appropriate to conduct a review of all the applicant's pay records and determine if he has been paid the correct amount of retired pay during the period beginning 1 July 2010 to the present, notify him of his authorized retired pay plan and the results of that review, and pay him any amount that may be due as a result of the review.

BOARD VOTE:

____X____  ___X_____  ____X____  GRANT FULL RELIEF 

________  ________  ________  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 relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

   a.  correcting the ITAPDB (Soldier Detail) to show a DIEMS of 3 March 1975, and

   b.  amending Headquarters, U.S. Army Maneuver Support Center and Fort Leonard Wood, MO, Orders 269-1302, paragraph 2, dated 26 September 2009, to show the "Date initially entered military service:  08 June 1986" to read "Date initially entered military service:  3 March 1975."

2.  As a result of the foregoing correction, the Board recommends the Defense Finance and Accounting Service (DFAS) be notified to conduct a review of the applicant's pay records using the appropriate retired pay plan formula, and apply the formula beginning 1 July 2010 through the present.  In addition, DFAS should notify the applicant of the results of that review, and any amount that may be due as a result of the review.  If applicable, DFAS should provide the applicant payment of all back retired pay due as a result of this correction of records.




      _______ _   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)                                         AR20100019737



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ABCMR Record of Proceedings (cont)                                         AR20100019737



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