IN THE CASE OF:
BOARD DATE: 31 July 2012
DOCKET NUMBER: AR20110021447
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, in effect, audit of his pay records and payment of all back pay and allowances due at the correct rate based on his correct pay entry basic date (PEBD).
2. The applicant states he served on active duty from 10 June 2002 to 31 March 2007 and he was paid based on a PEBD of 10 December 1995; however, his correct PEBD has been determined to be 3 December 1990. Therefore, he was not paid at the proper rate based on his prior service and he desires to have his records audited and to be paid all due pay and allowances that he was entitled to receive. He also states he concurs with the advisory opinion provided by the Human Resources Command (HRC).
3. The applicant provides a copy of his previous application to the Board and a copy of the Advisory Opinion obtained from HRC, Fort Knox, KY, in that application.
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 Regular Army on 3 March 1988 and he served on active duty as an infantryman and then as an animal care specialist until he was honorably discharged on 17 August 1994 in the rank/grade of sergeant (SGT)/E-5 to enter an officer training program. He completed 6 years, 5 months, and 15 days of creditable active service.
3. On 14 September 1994, he enlisted in the U.S. Army Reserve (USAR) for a period of 8 years and he was assigned to the Reserve Officers Training Corps (ROTC) Control Group.
4. On 17 May 1997, he was commissioned as a USAR second lieutenant in the Medical Service Corps. On 18 April 2002, he was appointed as a first lieutenant in the Veterinary Corps.
5. On 10 June 2002, he was ordered to active duty and on 12 June 2002 he was promoted to the rank of captain (CPT). He served on active duty until he was honorably released from active duty (REFRAD) on 31 March 2007.
6. A review of his Leave and Earnings Statements (LESs) shows his PEBD as
10 December 1995.
7. On 19 May 2011, in response to a request for an advisory opinion from the staff of the Board, officials at HRC, Fort Knox, provided an advisory opinion indicating that the applicants PEBD had been incorrectly computed and did not account for his prior enlisted service and his service as an Officer Active Duty Obligor (OADO). Accordingly, officials at HRC administratively changed his PEBD from 10 December 1995 to 3 December 1990. The advisory opinion was provided to the applicant for information and to allow him the opportunity to submit comments or a rebuttal; however, he failed to respond. As a result, his case was administratively closed.
DISCUSSION AND CONCLUSIONS:
1. The applicants contention that he was improperly paid while on active duty based on an incorrect PEBD has been noted and appears to have merit.
2. HRC recomputed his PEBD and determined he was not credited with his prior enlisted and OADO service. Therefore, it appears he was not paid at the proper rate during his service as a commissioned officer.
3. Accordingly, it would be in the interest of justice to audit his pay records and that the applicant be paid any back pay and allowances due him as a result of the change of his PEBD from 10 December 1995 to 3 December 1990.
BOARD VOTE:
____x___ ____x___ ____x___ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
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 directing the Defense Finance and Accounting Service to audit his pay records and pay him any back pay and allowances due as a result of the change of his PEBD from 10 December 1995 to 3 December 1990.
____________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) AR20110021447
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ABCMR Record of Proceedings (cont) AR20110021447
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