IN THE CASE OF:	  

		BOARD DATE:	  15 May 2012

		DOCKET NUMBER:  AR20110022954 


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:

* Correction of his records to show he is entitled to pay at the captain (CPT)/OE-3 (prior enlisted service) rate vice CPT/O-3
* Payment of all back pay and entitlements owed based on the correction

2.  The applicant states DOD Financial Management Regulation, volume 7A, chapter 1, states effective 1 January 2002 and 24 November 2003, the requirement for 4 years and 1 day of enlisted service was changed to 1,460 retirement points for Reserve and Army National Guard (ARNG) officers in grades O-1 through O-3.

3.  The applicant provides:

* National Guard Bureau (NGB) Form 23A (ARNG Current Annual Statement)
* DA Form 1559 (Inspector General Action Request)
* Ten pages of email
* Two pages of DOD Financial Management Regulation

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's records show he enlisted in the USAR on 28 September 1990.  On 9 March 1993, he transferred to the Texas Army National Guard (TXARNG).  He was honorably released from the ARNG on 20 October 1994.  

3.  He enlisted in the Regular Army (RA) 5 April 1995.  He was honorably released from active duty on 7 March 1998 in the rank of sergeant and he was transferred to the USAR.  He completed 2 years, 11 months, and 3 days of creditable active service.

4.  On 8 March 1998, he enlisted in the TXARNG.  On 6 August 1999, he was discharged from the TXARNG for the purpose of accepting an appointment as a warrant or commissioned officer.

5.  He was appointed as a second lieutenant (2LT) in the TXARNG on 7 August 1999.  He subsequently took an oath of office on 1 December 2001 and his appointment orders were amended to show the effective date of his appointment as 1 December 2001.

6.  Special Orders Number 105AR, dated 23 April 2003, issued by the NGB, amended previous orders and extended him Federal Recognition as a TXARNG 2LT effective 7 August 1999.

7.  He was promoted to first lieutenant on 20 May 2003 and CPT on 31 May 2007.

8.  The applicant provides his ARNG Current Annual Statement, dated 5 October 2010, wherein it shows he was credited with over 1,600 total points for retired pay from 28 September 1990 to 27 September 1999.





9.  DOD Financial Management Regulation, dated January 2010, volume 7A, chapter 1, states, in pertinent part:

	a.  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.

	b.  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. Code (USC) 12732(a)(2) service as a warrant officer and/or enlisted member are entitled to the special pay rate of basic pay for pay grade O-1E, O-2E, or O-3E.

	c.  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 on creditable service points is eliminated.  Therefore, effective that date, commissioned officers in the pay grades O-1 through O-3 with more than 1,460 computed under 10 USC 12732(a)(2) for service as a warrant officer and/or and an enlisted member are entitled to the special rate of pay.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should receive O-3E pay because the law states a Reserve commissioned officer credited with more than 1,460 points for retired pay for service as an enlisted member is entitled to O-3E pay.

2.  The evidence of record shows, prior to being commissioned in the TXARNG on 7 August 1999, he completed 2 years, 11 months, and 3 days of prior enlisted active service.  Effective 1 October 1993, the law requires completion of at least 4 years and 1 day of prior enlisted active service to qualify him to be paid as an O-3E vice O-3.  

3.  As he was commissioned prior to 2002, the laws that went into effect on 1 January 2002 and 24 November 2003, do not apply to him.

4.  In view of the foregoing, he is not entitled to the request relief. 


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)                                         AR20110022954





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ABCMR Record of Proceedings (cont)                                         AR20110022954



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