BOARD DATE:	  12 April 2012

		DOCKET NUMBER:  AR20110021703 


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 payment of the difference in pay and allowances between private first class (PFC)/E-3 and sergeant (SGT)/E-5 for the period 18 October 2001 to 8 May 2003.

2.  The applicant states:

* he was paid at the E-3 rate rather than the E-5 rate while he was a Simultaneous Membership Program (SMP) cadet in the South Carolina Army National Guard (ARNG)
* he made numerous attempts to correct the error
* it was not until July 2010 that the State of South Carolina published orders promoting him to E-5 for the period beginning 18 October 2001 and ending 8 May 2003, before being commissioned upon college graduation
* National Guard Regulation 600-100 (Commissioned Officers – Federal Recognition and Related Personnel Actions), paragraph 13-5, states the pay rate should be that of E-5 while assigned as an SMP cadet
* "Army Regulation 611-201 [601-210] (Active and Reserve Components Enlistment Program, paragraph 7-5 [9-14]," states the pay rate should be that of E-5 while assigned as an SMP cadet

3.  The applicant provides:

* memorandum, U.S. Property and Fiscal Office (USPFO), South Carolina ARNG, Columbia, SC, dated 2 August 2010
* USPFO Form 114-R-E (Military Pay Order), dated 27 July 2010
* Orders 197-840, South Carolina ARNG, dated 16 July 2010
* Orders 198-823, South Carolina ARNG, dated 17 July 2010
* USPFO Form 11-R-E (Transmission of Pay Documents), dated 17 December 2010
* memorandum, USPFO, South Carolina ARNG, dated 21 December 2010
* extract, Draft SMP Handbook
* Master Military Pay Account (MMPA) records for the period October 2001 through August 2010

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 enlisted in the South Carolina ARNG on 23 January 2001 in the rank/grade of PFC/E-3.

3.  His DA Form 597 (Army Senior Reserve Officers' Training Corps (ROTC) Non-scholarship Cadet Contract) shows he enrolled in the SMP on 18 October 2001.

4.  On 10 May 2003, the applicant accepted a Reserve commission as a second lieutenant.  His DA Form 71 (Oath of Office – Military Personnel) shows he executed the oath of office on 10 May 2003.

5.  During the processing of this case, the Chief, Personnel Policy Division, National Guard Bureau (NGB), Arlington, VA, provided an advisory opinion on 23 January 2012 concurring with the applicant and stating the following:

	a.  National Guard Regulation 600-100, paragraph 13-5(b), states, in part, "Officer trainees will be promoted to SGT/E-5 if not already serving in pay grade E-5 in accordance with National Guard Regulation 600-200….  The effective date for promotion and pay as an E-5 for officer trainees will be the date the member contracted in both the ARNG of the United States and the ROTC Advanced Course as an SMP participant and assigned the reporting code 09R2O."

	b.  Upon contracting in the SMP, the applicant was entitled to pay as an E-5.  Through no fault of his own, the applicant was incorrectly paid at the grade of E-3 from 18 October 2001 through 8 May 2003.  The applicant should receive back pay per the regulation referenced above.

	c.  The State concurs with this recommendation.

6.  The applicant was provided an opportunity to respond to the advisory opinion, but he did not.

7.  NGB Special Orders Number 174R, dated 7 June 2005, show the applicant was granted permanent Federal recognition as a first lieutenant effective 10 May 2005.

8.  The applicant provides the following in support of his application:

	a.  South Carolina ARNG Orders 197-840, dated 16 July 2010, showing the following with an effective date of 18 October 2001:

* he was promoted to the rank/grade of SGT/E-5
* he was awarded military occupational specialty (MOS) 09R2O

	b.  South Carolina ARNG Orders 198-823, dated 17 July 2010, showing the following with an effective date of 8 May 2003:

* he was reduced in rank/grade from SGT/E-5 to PFC/E-3 with a date of rank of 23 January 2001
* his MOS 09R2O was withdrawn
* he was awarded MOS 09R1O

	c.  MMPA records for the period October 2001 through August 2010 showing the pay he received.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for the difference in pay from E-3 to E-5 for the period 18 October 2001 to 8 May 2003 was carefully considered and determined to have partial merit.



2.   He should have been promoted to E-5 when he signed his DA Form 597 on 18 October 2001.  It appears administrative errors caused a delay in promoting the applicant to E-5.  Orders promoting him to E-5 were not published until 16 July 2010, with an effective date of 18 October 2001.  

3.  It appears orders were then published on 17 July 2010, reducing the applicant to E-3 effective 8 May 2003 based on his completion of the SMP.  He was discharged on 9 May 2003 and accepted a Reserve commission as a second lieutenant on 10 May 2003.    

4.  Based on applicable laws and regulations, the applicant is entitled to the difference in pay from E-3 to E-5 for the period 18 October 2001 to 7 May 2003.

5.  The applicant is not authorized the difference in pay between PFC/E-3 and SGT/E-5 for 8 May 2003 since orders show he was reduced to PFC/E-3 effective 8 May 2003.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__x_____  __x_____  ___x_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  directing the Defense Finance and Accounting Service (DFAS) to audit his MMPA for the period 18 October 2001 to 7 May 2003 to determine the difference in earned pay between PFC/E-3 and SGT/E-5 and

	b.  paying him the difference in earned pay between PFC/E-3 and SGT/E-5 for the period 18 October 2001 through 7 May 2003 as determined by DFAS.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to the difference in pay between PFC/E-3 and SGT/E-5 for 8 May 2003.



      __________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)                                         AR20110021703



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ABCMR Record of Proceedings (cont)                                         AR20110021703



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