IN THE CASE OF:
BOARD DATE: 1 May 2012
DOCKET NUMBER: AR20110022035
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 his retirement pay be the highest of either captain (CPT)/O-3E (prior enlisted service) or chief warrant officer three (CW3).
2. The applicant states he is currently being paid as an O-3 which is less than either O-3E or CW3.
3. The applicant provides an Army Reserve Personnel Command (ARPC) Form 249-E (Chronological Statement of Retirement Points) and DD Form 108 (Application for Retired Pay Benefits.
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's records show he was born on 3 March 1948. He enlisted in the Regular Army on 7 July 1967. He was honorably released from active duty on 7 February 1970 in the rank of private first class and he was transferred to the U.S. Army Reserve (USAR). He completed 2 years, 7 months, and 1 day of creditable active service during this period of service.
3. He was commissioned as a second lieutenant in the U.S. Marine Corps (USMC) and entered active duty on 8 November 1974. He was honorably separated from active duty on 7 May 1982 in the rank of CPT. He completed 7 years and 6 months of creditable active service during this period of service.
4. He was appointed as a Reserve warrant officer (WO) in the Army National Guard (ARNG) and executed an oath of office on 13 March 1984. He served in staff and leadership positions and on 9 April 2001 he was promoted to the rank of CW3 in the ARNG.
5. He was honorably discharged from the ARNG on 31 March 2005 in the rank of CW3 and transferred to the Retired Reserve. His National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows he completed 24 years, 5 months, and 10 days of total Reserve service and had 10 years, 1 month, and 1 day of prior active service.
6. An NGB Form 23B (ARNG Retirement Points History Statement), dated 1 November 2005, shows he was credited with 546 (or 1 year, 5 months, and 27 days) active duty points during his service in the ARNG as a WO.
7. AHRC-PAP-T Orders Number P02-801795, dated 7 February 2008, issued by U.S. Army Human Resources Command-St. Louis, retired him and placed him on the retired list effective 3 March 2008, his 60th birthday, in the rank of CW3.
8. On 14 October 2009, the ABCMR granted the applicant's request for correction of his records to show he was retired in the highest grade he had held and his records were subsequently corrected to show he was retired and placed on the retired list effective 3 March 2008 in the rank/grade of CPT/O-3.
9. DOD Financial Management Regulation, dated January 2010, volume 7A, chapter 1, states, in pertinent part, effective 20 May 1958, commissioned officers
in pay grades O-1, O-2, or O-3 who are credited with over 4 years 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. Effective 1 October 1993, commissioned officers in pay grades O-1, O-2, or O-3 who are credited with over 4 years of combined prior active service as an enlisted member and WO are entitled to the special rate of basic pay for pay grade O-1E, O-2E, or O-3E.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows, prior to being commissioned in the USMC on 8 November 1974, the applicant completed 2 years, 7 months, and 1 day of prior enlisted active service. The law requires completion of at least 4 years and 1 day of prior enlisted service to qualify him for retired pay as an O-3E vice O-3. Although he completed several periods of active duty as a warrant officer which when combined with his prior enlisted service adds up to more than 4 years and 1 day, he did so after he was commissioned. Therefore, he is not entitled to retired pay at the O-3E rate.
2. According to the Defense Finance and Accounting Service (DFAS) official website, the January 2012 pay table shows the basic pay rate for an O-3 exceeds that of a CW3. It is a policy of this Board to not disadvantage an applicant by making the situation any worse off for having applied for a correction to their record. Additionally, the function of determining the exact amount of retired pay is a DFAS function; it is not within the purview of this Board. The applicant is advised to contact DFAS - Retired Pay if he believes he is not being paid the correct pay rate.
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 for correction of the records of the individual concerned.
_______ _ __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) AR20110022035
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ABCMR Record of Proceedings (cont) AR20110022035
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