IN THE CASE OF:	  

		BOARD DATE:  10 July 2012

		DOCKET NUMBER:  AR20110021699 


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, relief from the 6-year barring statute in order to receive payment for military service performed and correction of her basic pay rate as a commissioned officer to show she had 1,460 retirement points as an enlisted member and therefore, is entitled to payment of the difference in “E pay” for the years 2004 through 2006.  

2.  The applicant states, in effect, she was initially informed by the Tennessee Army National Guard Finance Department that she was not entitled to the special “E pay” in 2004.  She further states her pay grade was corrected from O-3 to       O-3E in 2006 by the Oklahoma Army National Guard (OKARNG) and she received a payment of $355.30 in November 2006 which covered the pay difference (excluding Basic Allowance for Housing) for 2006.  Upon completing further research, she learned commissioned officers in pay grades  O-1 through O-3 with more than 1,460 points for service as a warrant officer and/or enlisted member were entitled to the special rate of pay.  Since 2006, the applicant has worked with various members of her unit as well as her State Supervisory Financial Technician who ultimately completed a thorough audit of her military pay record and state she is due $1,765.85; however, the technician was unable or unwilling to process the action with the Defense Finance and Accounting Service (DFAS) due to the statute of limitations.

3.  The applicant provides:

* Military Pay and Allowance Tables for years 2004 through 2006
* 20 pages of email correspondence from October 2006 through 2011
* 17 pages of Leave and Earnings Statements/Data Prints
* U.S. Government Geneva Conventions Identification Card
* 2 spreadsheets  

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code (10 U.S.C.), 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's official military personnel file (OMPF) contains a DD Form   214 (Certificate of Release or Discharge from Active Duty) for the period ending 27 August 1993, which shows she enlisted in the U.S. Air Force and she completed 3 years and 8 months of active duty service.  This form was later corrected by DD Form 215 (Correction to DD Form 214) to show she completed 3 years, 7 months, and 26 days of active duty service.  On 27 August 1993, she was honorably released from active duty and transferred to the U.S. Air Force Reserve to complete her service obligation.    

3.  Her OMPF contains a National Guard Bureau Form 22 (Report of Separation and Record of Service) for the period ending 19 April 2000, which shows she enlisted in the OKARNG on 6 January 1999 and she completed 1 year,               3 months, and 14 days of net service during this period and prior to her appointment as a commissioned officer.  Item 10(e) (Total Service for Retired Pay) shows she had completed 7 years.  

4.  On 20 April 2000, she was appointed as a Reserve Army Medical Service  Corps officer in the rank/grade of second lieutenant (2LT)/O-1 and executed an oaths of office with the OKARNG.  

5.  The applicant's records indicate she was subsequently promoted to the rank/grade of first lieutenant/O-2 on 24 April 2002 and to captain/O-3 on 18 May 2005.


6.  Her record contains an ARNG Current Annual Statement which is a summary of the points she has earned towards retirement.  The record shows she had accumulated 1,581 retirement points prior to her appointment to 2LT. 

7.  The applicant’s record shows she was assigned to the Retired Reserve in the rank/grade of major/O-4 on 31 January 2012.  

8.  Department of Defense (DOD) Financial Management Regulation, Volume 7A, Chapter 1 states, in pertinent part:

   a.  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 (i.e., active duty for training in enlisted or warrant officer status, annual Reserve training duty, and full-time National Guard duty).  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. 

   b.  Credited Prior Enlisted Service.  Effective 20 May 1958, commissioned officers in pay grades O-1, O-2, or O-3 who are credited with over 4 years (i.e., at least 4 years and 1 day) of prior active service as an enlisted member are entitled to the special rate of basic pay for pay grade O-1E, O-2E, or O-3E.

   c.  Creditable Service for Certain Reserve Commissioned Officers.  Effective 1 January 2002, commissioned officers in pay grades O-1, O-2, and O-3 who are paid from funds appropriated for Reserve personnel and credited with 1,460 points for retirement computed under 10 U.S.C 12732(a)(2) service as a warrant officer and/or enlisted member are entitled to the special rate of pay for pay grade O-1E, O-2E, or O-3E.
   
   d.  Creditable Service for Certain Commissioned Officers.  Effective              24 November 2003, the restriction that members must be paid from reserve appropriated funds to qualify for the special rate of basic pay for pay grades      O-1E, O-2E, and O-3E based upon creditable service points was eliminated.  Therefore, effective that date, commissioned officers in pay grades O-1 through O-3 with more than 1,460 points computed under 10 U.S.C 12732(a)(2) for service as a warrant officer and/or an enlisted member are entitled to the special rate of pay.

9.  Title 31, U.S.C., section 3702 is the 6-year barring statute for payment of claims by the government.  In essence, if an individual brings a claim against the government for monetary relief.  The barring statute says that the government is only obligated to pay the individual 6 years from the date of the approval of the claim.  Attacks to the barring statute have resulted in litigation in the United States Court of Federal Claims.  In the case of Pride v. United States, the court held that the Board for Correction of Military Records (BCMR) is not bound by the barring act, that the BCMR decision creates a new entitlement to payment and the 6 years starts running over again, and that payment is automatic and not discretionary when a BCMR decision creates an entitlement.  
  
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request for entitlement to payment of the difference in “E pay” for the years 2004 through 2006 has been carefully examined and found to have merit.  

2.  Effective 1 January 2002, the DOD Financial Management Regulation required 4 years and 1 day of enlisted service or 1,460 retirement points for the service to be counted for calculating an officer's basic pay for the special rate of basic pay (i.e., O-1E, O-2E, and O-3E).  The evidence clearly shows the applicant exceeded the 1,460 point threshold prior to her appointment as a 2LT on 20 April 2000. 

3.  The applicant has been unjustly denied benefits she otherwise would have been entitled to receive, and it appears she may have been denied the additional pay effective 1 January 2002 or, at the latest, 23 November 2003.  

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 showing she submitted her claim for pay and allowances under the special rate of basic pay for pay grade O-1E, O-2E, and O-3E in a timely manner and that DFAS audit her military pay records and pay her due back pay and allowances due as a result of the above correction.




      _______ _   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)                                         AR20110021699



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110021699



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1