IN THE CASE OF:	  

		BOARD DATE:	    17 May 2012

		DOCKET NUMBER:  AR20110023938 


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 arrears in retired pay.

2.  The applicant states:

* he retired from the Active Guard Reserve (AGR) Program of the Florida Army National Guard (FLARNG) on 30 June 2003
* the AGR personnel correctly calculated his creditable military service as 24 years, 4 months, and 7 days
* on the other hand, personnel at Fort Stewart, GA, calculated 22 years, 1 month, and 16 days
* he questioned personnel at the time, but he was told the difference of 2 years, 2 months, and 26 days was not counted for an active duty retirement
* AGR personnel subsequently worked with the Defense Finance and Accounting Service (DFAS) to resolve the issue
* in September 2011, his retired pay was corrected – he had been retired for a total of 98 months at the time
* DFAS paid him from 1 April 2005 through 31 August 2011, the maximum in arrears authorized by its office – 6 years and 5 months' worth of back pay (77 months)
* this left 21 months (1 July 2003 to 31 March 2006) unpaid

3.  The applicant provides:

* memorandum from the FLARNG AGR Manager, dated 8 June 2011
* Orders P155-056, FLARNG, dated 4 June 2003
* DA Form 7301-R (Officer Service Computation for Retirement)
* DFAS letters

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was born on 7 November 1944.

2.  He enlisted in the Regular Army on 27 May 1966 and held an infantry specialty.  He was honorably discharged on 14 May 1967 to accept a commission.

3.  He was appointed as a Reserve warrant officer of the Army and executed an oath of office with concurrent call to active duty on 15 May 1967.  He was released from active duty on 1 August 1971 and he was transferred to the U.S. Army Reserve (USAR) Control Group (Standby Reserve).

4.  He was appointed as a warrant officer in the FLARNG and executed the oaths office on 15 November 1980.  He served in a variety of stateside and overseas assignments and he attained the rank of chief warrant officer four (CW4).

5.  On 1 November 1989, he entered State active duty followed by extended active duty in support of Operation Desert Storm.  He was honorably released from active duty on 31 January 1991.

6.  On 16 May 1996, the FLARNG issued him a Notification of Eligibility for Retired Pay at Age 60.

7.  On 6 July 2000, he entered active duty in support of Operation Desert Spring and subsequently served in Kuwait.  He was honorably released from active duty on 16 February 2001.  However, he reentered active duty on 17 February 2001.

8.  In connection with his retirement, a DA Form 7301-R (Officer Service Computation for Retirement) was submitted.  This form credited him with 22 years, 1 month, and 16 days of active service and 2 years, 2 months, and 21 days of retirement points for a total of 24 years, 4 months, and 7 days of active service under Title 10, U.S. Code, section 1405.

9.  On 4 June 2003, the FLARNG published Orders P155-056 ordering his retirement from active service effective 30 June 2003 and placement on the Retired List in the rank of CW4 effective 1 July 2003.  These orders show the following entries:

* Statute Authorizing Retirement:  Title 10, U.S. Code, section 1293
* Mandatory Retirement:  22 years, 1 month, and 16 days
* Section 1405 Service:  24 year, 4 months, and 7 days

10.  He was honorably retired on 30 June 2003 and placed on the Retired List in the rank of CW4 on 1 July 2003.  He was simultaneously discharged from the ARNG on 30 June 2003 and transferred to the Retired Reserve.  His National Guard Bureau Form 22 (Report of Separation and Record of Service) shows he completed 22 years, 7 months, and 16 days of net service during this period.

11.  On 8 June 2011, the FLARNG notified him by letter that a review of his retirement account reflected an error in his monthly retired pay.  The review indicated the multiplier in his retired pay account was incorrect.  His retirement orders showed two entries:  voluntary retirement and section 1405.  Section 1405 is a higher number because it includes all of his active duty time plus inactive duty points and membership points he earned during his career.  The voluntary retirement included active duty only.  His multiplier was erroneously based on the voluntary retirement instead of the section 1405 retirement.  As such, the error reduced his retired pay.

12.  On 3 November 2011, DFAS notified him by letter that his pay was corrected and his multiplier was changed from 22.08 (based on 22 years, 1 month, and 16 days) to 24.33 (based on 24 years, 4 months, and 7 days).  Additionally, DFAS paid him the difference in pay from 1 April 2005 to 31 August 2011 based on the 6-year limitation.

13.  Title 10, U.S. Code, section 1405 (Years of Service), states:

	a.  In general, for the purposes of the computation of the years of service of a member of the Armed Forces under a provision of this title providing for such computation to be made under this section, the years of service of the member are computed by adding (1) his or her years of active service; (2) the years of service, not included in clause (1), with which he or she was entitled to be credited on 31 May 1958, in computing his basic pay; and (3) the years of service, not included in clause (1) or (2), with which he or she would be entitled to be credited under section 12733 of this title if he or she were entitled to retired pay under section 12731 of this title.

	b.  In determining a member's years of service under subsection (a), each full month of service that is in addition to the number of full years of service creditable to the member shall be credited as 1/12 of a year and any remaining fractional part of a month shall be disregarded.

DISCUSSION AND CONCLUSIONS:

1.  Upon the applicant's retirement, his retired pay multiplier was incorrect.  His retirement orders showed two entries:  voluntary retirement (22 years, 1 month, and 16 days) and section 1405 (24 years, 4 months, and 7 days).  Section 1405 is a higher number because it includes all of his active duty time plus inactive duty points and membership points he earned during his career.  The voluntary retirement included active duty only.  His multiplier was erroneously based on the voluntary retirement instead of the section 1405 retirement.  This error reduced his retired pay.

2.  When the FLARNG reviewed his records and DFAS audited his retired pay records, it was determined that the error was not due to the applicant's fault and, as such, his multiplier was corrected based on completion of 24 years, 4 months, and 7 days.  He was paid the difference in retired pay from 1 April 2005 to 30 November 2011, a maximum of 6 years, as there is no authority for DFAS to pay beyond the 6-year limitation.

3.  This error clearly denied the applicant the correct retired pay from the date of retirement, 1 July 2003.  As such, he is entitled to correction of his records to show he timely filed his claim for correction of his retired pay multiplier and payment of any retired pay due as a result of this correction.

BOARD VOTE:

___X____  ___X___  ___X____ GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is 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 the applicant timely filed a claim with DFAS-Cleveland for payment of retired pay based on Title 10, U.S. Code, section 1405
* showing DFAS-Cleveland timely received and accepted his claim
* having DFAS audit his pay records and pay him retroactive retired pay to the date of his retirement as a result of this 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)                                         AR20110023938



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ABCMR Record of Proceedings (cont)                                         AR20110023938



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