IN THE CASE OF:	  

		BOARD DATE:	  26 January 2012

		DOCKET NUMBER:  AR20110003858 


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 that he be paid retired pay in the rank of major general (MG)/O8 instead of colonel/O6.

2.  The applicant states, in effect, that he originally retired from the Maine Army National Guard (MEARNG) in the rank of colonel and he was subsequently recalled to serve as The Adjutant General (TAG) of the State of Maine.  He goes on to state that he was promoted to the rank of MG and he was retired in the rank of MG on 30 November 1998.  However, officials at the Defense Finance and Accounting Service (DFAS) are still paying him at the O6 rate with the same number of points that he had as a colonel.  DFAS will not pay him at the O8 rate nor grant him credit for the points he accrued while serving as general officer.  

3.  The applicant provides copies of:

* Title 10, U.S. Code, section 12739 (Recomputation of Retired Pay)
* a letter from the Human Resources Command (HRC) advising him that his rank and retirement points had been adjusted to reflect his service as a MG and that DFAS officials had been provided the adjustment
* an email from officials at HRC regarding a difference of interpretation between HRC and DFAS
* his promotion orders to MG
* a chronology of events
* correspondence received from DFAS


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 was born on 5 November 1934 and he was commissioned as a U.S. Army Reserve (USAR) second lieutenant on 9 June 1957.  He entered active duty on 11 April 1958 and served until he was honorably released from active duty (REFRAD) on 10 April 1960 and transferred to the USAR Control Group (Annual Training) in the rank of first lieutenant. 

3.  On 29 April 1962, he accepted an appointment with the MEARNG and he was promoted to the rank of captain on 9 October 1964.  He continued to serve with the MEARNG and he was promoted to the rank of colonel on 1 November 1976 when he was assigned to the position of Chief of Staff of the MEARNG.

4.  On 10 February 1989, he was honorably discharged from the MEARNG due to a termination of waiver beyond his mandatory removal date and transferred to the USAR Control Group (Reinforcement).

5.  In November 1994, the applicant began receiving his non-regular retired pay at age 60 in the rank of colonel.

6.  On 20 February 1995, the applicant was recalled in the rank of colonel by the Secretary of the Army to serve as TAG of the State of Maine.

7.  On 21 May 1996, he was promoted to the rank of brigadier general/O7 and on 30 September 1997 he was promoted to the rank of MG/O8.

8.  On 30 November 1998, the applicant’s Federal Recognition was withdrawn due to maximum age and he was transferred to the Retired Reserve in the rank of MG/O8.  However, he continued to be paid in the rank of colonel.

9.  On 9 July 2008, officials at DFAS dispatched a letter to the applicant informing him that DFAS was unable to process his request to change his retired pay account and that he would need to contact his branch of service so they can submit official orders to change his records.  He was provided a DD Form 149 as well.

10.  On 28 August 2008, officials at HRC in St. Louis, Missouri advised the applicant that his request for recompilation of retirement points had been accomplished and his rank had been corrected.  He was also advised that DFAS had been provided the adjustments and he should see the adjustment in his retired pay within 120 days. 

11.  On 27 July 2009, in response to a congressional inquiry on behalf of the applicant, officials at DFAS advised the applicant’s congressional representative that DFAS was unable to comply with the applicant’s request for recomputation of his retired pay based on his service as Adjutant General because there was no legislation authorizing the changes he was requesting.  In accordance with Title 10, U.S. Code (USC), Section 1402, which governs the recomputation of military retired pay, DFAS was only authorized to recognize active duty retirees as having an entitlement to change in grade upon subsequent retirement.  It also prohibits DFAS from using points accrued during his service as TAG to recompute his military retired pay.  However, he is entitled to be addressed in his honorary rank of MG.

12.  Title 10, USC, Section 1402 (Recomputation of Retired or Retainer Pay to Reflect Later Active Duty of Members Who First Became a Member Before         8 September 1980), in effect at the time, provides that a member of an armed force who first became a member of a uniformed service before 8 September 1980, and who has become entitled to retired pay or retainer pay, and who thereafter serves on active duty (other than for training), is entitled to recompute his retired pay or retainer pay upon his release from active duty.  The entitlement to recomputed retired pay was limited to 10 USC Sections 1401 and 1402a.  These statutes authorized recomputation of retired pay for a member who served on “active duty (other than for training)” as defined in 10 USC Section 101(d).  Effective 28 October 2009, the law changed to allow a retired reserve member recalled to active status entitlement to recomputation of non-regular retired pay if: 1) the member is recalled to active status in the Selected Reserve of the Ready Reserve, and 2) the member completes not less than two years of service in an active status.

13.  10 USC Section 12739(e)(1) provides special provisions for adjutant generals and assistant adjutant generals, who may be entitled to a recomputation with less than two years if the Secretary of the Army so authorizes.  Effective 
28 October 2009, Reserve retirees who meet the above-mentioned requirements will be entitled to a recomputation of retired pay under 10 USC 12739(a), which will take into account post-retirement promotions and points earned in calculating the new retired pay.  The change was not retroactive.

14.  Title 32, USC, Section 314(a) provides that there shall be an adjutant general in each State and Territory, Puerto Rico, and the District of Columbia that shall perform the duties prescribed by the laws of that jurisdiction.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he should be retired and paid in the rank of MG/O8 has been noted. 

2.  The applicant was retired in the rank of colonel/O6 in February 1995 and he was recalled to serve as TAG for the State of Maine within 3 months.  He was subsequently promoted to the ranks of brigadier general (May 1996) and MG (September 1997) and he served in the capacity of TAG for 3 years, 9 months, and 10 days before he was again retired due to maximum age.

3.  The law at the time the applicant was recalled to Reserve service did not include entitlement to recomputed retired pay for service completed in the Reserve components after becoming eligible to receive retired pay.  The entitlement to recomputed retired pay was limited to 10 USC Section 1402 and 1402a.  These statutes authorized a member who served on “active duty (other than for training)” after becoming entitled to retired pay to a recomputation of retired pay that included the additional period of active duty service.  Reserve retirees did not typically qualify for recomputation because their post-retirement service did not qualify as “active duty (other than for training)” as defined in 
10 USC Section 101(d).  In short, traditional Reserve Soldiers and National Guardsmen, such as the applicant, were not eligible to have their retired pay increased because their post-retirement service did not qualify as “active duty.”

4.  Over a decade after the applicant returned to the Retired Reserve, this area of law was changed on 28 October 2009 and provides for a recomputation of non-regular retired pay if the member was recalled to active status in the Selected Reserve of the Ready Reserve and completed not less than 2 years of service in an active status.  However, the provisions of the law were not made retroactive.

5.  Accordingly, it appears that the applicant’s retired pay has been properly calculated under the laws as they existed at the time and there does not appear to be any legal authority to grant relief in his case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ___X_____  ____X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States.  The applicant and all Americans should be justifiably proud of his service in arms.




      _______ _   XXX____   ___
               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)                                         AR20110003858



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ABCMR Record of Proceedings (cont)                                         AR20110003858



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