IN THE CASE OF:	  

		BOARD DATE:	 12 May 2011 

		DOCKET NUMBER:  AR20100022939 


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 reconsideration of an earlier request that he be retired and paid in the pay grade of O-3E (captain with over 4 years of enlisted service) and paid under the Redux Plan at the High-3 rate (average of last 36 months) based on retiring as an O-3E at 20 years of service.

2.  In an undated statement to a Member of Congress, the applicant states:

* His first request was declined for reasons he believes were not only in error but also frivolous
* Despite what the Army Board for Correction of Military Records (ABCMR) believes, the law in fact allows for this type of retirement
* There is precedence set by retirements similar to his
* It was always his intention to spend 30-40 years in the military or as long as they would have him 
* During his military career his first wife of 15 years died of leukemia, now his second wife is on a high risk watch for breast cancer, his mother-in-law passed last year from breast cancer, and the remainder of their parents have either cancer or Parkinson's disease

3.  He states he retired on 1 December 2008 having completed 12 years of enlisted service and 8 years of commissioned service.  When it came time for him to announce his retirement, it was not received well or even accepted by the unit commander who desired for him to instead deploy to Iraq and then move up 


to become a troop commander within the unit.  He has served for 8 years as an officer and he was a captain up until 2 days prior to retiring because he was required to complete an unqualified resignation of his commission.   This was because no one knew how to correctly proceed with his retirement.  He was retired as a sergeant first class with 12 years of service on 1 December 2008, because of not completing 10 years as an officer.

4.  He states at the time of his retirement, Title 10, U.S. Code, chapter 367, section 3911 stated the Secretary of the Army could waive the 10-year requirement to 8 years.  He was not afforded the opportunity to apply for this waiver because no one in his chain of command, the Department of the Army Human Resources Branch, nor the Fort Bragg, NC, Transition/Retirements Department was aware of this option.  He was told and subsequently forced to complete an unqualified resignation of his commissioned service, and then retire as a noncommissioned officer.  Instead, what should have occurred was a request to the Army Grade Determination and Review Board prior to his retirement, and an application for this waiver of 10 years to 8 years.

5.  He further states that throughout his retirement process he was told at every level that financially it wouldn't matter because he would be retiring under the Redux/High Three Plan.  He would be paid an average of his last 3 years of pay regardless of the unqualified resignation, his tombstone would say sergeant first class but his pay would be commensurate with his level of service as a captain.  After receiving his first retirement check, he saw this was not at all the case.  He was misinformed, informed incompletely, and informed erroneously.

6.  He goes on to state the ABCMR made several mistakes in reviewing his case:

* They erroneously misquoted Title 10, U.S. Code, chapter 367, section 3911 for the time period in which he retired which allows for the 8 years of service instead of 10 in order to retire as an officer
* They acknowledged the fact that this was indeed hardship but they were not compassionate about it and their bottom line up front of "We cannot do this for you as it may be unfair to others in the same situation" is a completely absurd answer from a panel of colonel's who interpret law incorrectly

7.  He also states the only reason he retired from the Army at 20 years of service and during a time of war was because of the multiple hardships he was faced with.  His chain of command in the unit did not support his retirement and the commander went out of his way to make sure there were no favors done to help 


him.  It is unfortunate he had to retire before he intended to.  A grave mistake was made that cost him well over a thousand dollars each month in a benefit that was earned as a highly-distinguished Soldier and decorated veteran of multiple wars, conflicts, contingency operations, and even a couple of humanitarian relief missions as both officer and enlisted.

8.  The applicant provides:

* Undated statement to a Member of Congress with five enclosures outlined on the last page
* Letter, dated 19 October 2010, from a Member of Congress

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20090014743, on 8 June 2010.

2.  His contention the ABCMR erroneously misquoted the law [Title 10, U.S. Code, chapter 367, section 3911] in effect at the time of his retirement which allows for the 8 years of service instead of 10 years in order to retire as an officer is a new argument that warrants consideration by the Board.

3.  He provides a memorandum for record, dated 14 July 2010, from a retirement counselor at Fort Bragg.  She states, in pertinent part, she has served as a human resources assistant/retirement counselor at Fort Bragg since the beginning of 2008 and that she has personally processed the request of a voluntary retirement for length of service of over 20 active service years for an officer retiring with a minimum of 8 years commissioned time [this was in accordance with Title 10, U.S. Code, section 3911, subtitle B, Part II, and chapter 367].  She believes that, although there was not a direct injustice to the applicant during his request for voluntary retirement, the personnel involved only proceeded with an unqualified resignation and request for retirement as an enlisted service member due to the lack of knowledge of the directives outlined in Title 10, U.S. Code.  She believes that had the personnel involved in the applicant's retirement process been aware of the period specified in the law 
(6 January 2006 and ending on 31 December 2008) the applicant would have requested the Secretary of the Army consider his request to retire as a captain with 8 years of active commissioned service.


4.  She states due to her professional knowledge of the provisions outlined in the law she believes the applicant and the personnel involved should have investigated further the results of requesting an unqualified resignation in order to retire at the highest enlisted grade satisfactorily held and the effects on the retired pay.  She contends the applicant was misinformed because of the short period of time specified by the provision and the uncommonness of requests for retirement with less than 10 years active commissioned time.  She also indicates it is her opinion the applicant was erroneously informed of information in regard to retired pay and he has acquired new evidence to support his request.  This is new evidence that will also be considered by the Board. 

5.  The applicant enlisted in the Regular Army on 17 November 1988 for a period of 4 years.  He completed his training and he remained on active duty through a series of continuous reenlistments until he was honorably discharged in the pay grade of E-7 on 2 August 2000 to accept a commission.  He had served 11 years, 8 months, and 16 days of active service at that time.

6.  On 2 August 2000, he was commissioned as an infantry second lieutenant with a concurrent call to active duty.  He remained on active duty and he was promoted to the rank of captain on 1 January 2004.  His spouse died on 22 September 2005.

7.  Although not contained in the available records, the applicant submitted his request for unqualified resignation and it was approved by the U.S. Army Human Resources Command on 22 September 2008 with an effective date of 19 November 2008.

8.  On 27 November 2008, the applicant was honorably discharged for the purpose of immediate enlistment or reenlistment.  He then enlisted in the Regular Army in the pay grade of E-7 for a period of 2 years and on 1 December 2008 he was placed on the Retired List in the pay grade of E-7.  He had served 20 years and 14 days of active service.

9.  Records at the Defense Finance and Accounting Service show he was retired in the pay grade of E-7 and he is being paid under the Redux Plan at the 40 percent (%) rate.  Officials at DFAS opined his retired pay appears to be computed properly based on information contained at that location. 

10.  The High-3/Redux Plan pertains to Soldiers with a date initially entered military service of 1 August 1986 or later.  Their retired pay is computed as 2 1/2 times the number of years of service, minus 1% for each year under 30 years of 


service, times the average of the highest 36 months of base pay during that service.  Annual cost of living allowances are reduced by 1% below those for the Final Pay and High-3 Plans.  This one-time adjustment is not retroactive.  In addition, for each year after age 62, annual cost of living allowances are again reduced by 1%.

11.  Title 10, U.S. Code, section 3911 (Twenty years of more: regular or reserve commissioned officers), paragraph (a) provides that the Secretary of the Army may, upon the officer's request, retire a regular or reserve commissioned officer of the Army who has at least 20 years of service computed under section 3926 of this title, at least 10 years of which have been active service as a commissioned officer.  Paragraph (b)(1) states the Secretary of Defense may authorize the Secretary of the Army, during the period specified in paragraph (2), to reduce the requirement under subsection (a) for at least 10 years of active service as a commissioned officer to a period (determined by the Secretary of the Army) of not less than 8 years.  Paragraph (b)(2) states the period specified in this paragraph is the period beginning on 6 January 2006 and ending on 
31 December 2008.

12.  Information obtained from the Policy Integrator, G1 Directorate of Manpower and Personnel Management Officer Division revealed the Army elected not to exercise the authority described in Section 3911(b) of Title 10 relating to the reduction of the required length of commissioned service (10 years) for voluntary retirement as an officer.  Requests for exceptions/waivers would be considered at the Assistant Secretary of the Army (Manpower and Reserve Affairs) level.  Therefore, requests for retirement when the member does not meet the statutory requirement (10 years commissioned service) should be submitted as an unqualified resignation for the purpose of enlistment and qualified retirement as an enlisted member.

13.  Title 10, U.S. Code, section 1407(a) provides, in pertinent part, that officers who retire with less than 30 years of service and before completing 10 years of commissioned service will be retired in their enlisted status and can only use the basic pay for their enlisted time in the calculation of the average of their highest 36 months of basic pay.

DISCUSSION AND CONCLUSIONS:

1.  After his request for an unqualified resignation was approved, he retired as a sergeant first class on 1 December 2008, having completed 12 years of enlisted service and 8 years of commissioned service.  

2.  He contends at the time of his retirement the law allowed the Secretary of the Army to waive the 10 years of active service as a commissioned officer requirement to a period of not less than 8 years.  However, information obtained from the Policy Integrator, G1 Directorate of Manpower and Personnel Management Officer Division revealed the Army elected not to exercise the authority described in Title 10, section 3911(b) relating to the reduction of the required length of commissioned service (10 years) for voluntary retirement as an officer.
 
3.  Based on the foregoing, there is no basis for granting the applicant's requested relief. 

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 to amend the decision of the ABCMR set forth in Docket Number AR20090014743, dated 8 June 2010.



      ____________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)                                         AR20100022939



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100022939



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1