IN THE CASE OF:	  

		BOARD DATE:	  26 July 2012

		DOCKET NUMBER:  AR20110024408 


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:

* issuance of a DD Form 214 (Certificate of Release or Discharge from Active Duty) for his service as a commissioned officer
* his retired pay be recomputed to account for his years of service culminating in pay grade O-3E (Officer – 3 (Captain, CPT) E (prior enlisted service))

2.  The applicant states his pay is wrong and his officer DD Form 214 is missing.

3.  The applicant provides:

* DD Form 214 (30 October 2008 - 31 October 2008)
* DD Form 214 (11 January 1989 - 7 March 2002)
* DD Form 214 (10 February 1988 - 17 June 1988)
* Orders 214-0010 for separation processing
* Orders 160-073 promoting him to captain
* DA Form 78-R (Recommendation for Promotion to first lieutenant (1LT))
* DA Form 71 (Oath of Office) as a second lieutenant
* Memorandum concerning unqualified resignation and enlistment as a sergeant (SGT/E-5)


CONSIDERATION OF EVIDENCE:

1.  The applicant is a retired Regular Army (RA) Soldier.

2.  With prior Reserve component service dating from 5 August 1987 (DIEMS (Date Initially Entered Military Service)), the applicant enlisted in the RA for 4 years on 11 January 1989.  He was a private first class (PFC)/E-3).  He served through a series of reenlistments, rising to the rank/grade of sergeant (SGT)/E-5.

3.  On 7 March 2002, the applicant was honorably discharged as an SGT/E-5 to accept a commission in the Army.  On 8 March 2002, he entered active duty as a second lieutenant (2LT).  He was promoted to 1LT on 8 September 2003 and to CPT on 1 July 2005.

4.  On an unknown date, the applicant submitted a request for unqualified resignation for the express purpose of enlistment/reenlistment in the RA.  On 26 June 2008, the Retirements and Separations Branch, U.S. Army Human Resources Command (HRC), approved the applicant's request.

5.  On 31 July 2008, HRC authorized the applicant to enlist as a SGT/E-5 for the express purpose of immediate retirement.  He was approved for enlistment on 30 October 2008, with placement on the Retired List on 1 November 2008.

6.  The applicant resigned his commission on 29 October 2008 and he enlisted in the RA on 30 October 2008.  On 31 October 2008, he was retired as a SGT/E-5 by reason of sufficient service for retirement.  He completed 20 years, 1 month, and 27 days of creditable active service.  He was placed on the Retired List on 1 November 2008.  There is no evidence he received a DD Form 214 for the period 8 March 2002 through 29 October 2008.

7.  The Defense Finance and Accounting Service (DFAS) confirmed the applicant is receiving retired pay as a SGT/E-5.

8.  Army Regulation 600-8-24 (Officer Transfers and Discharges) prescribes officer transfers from active duty to the Reserve component and discharge functions for all officers on active duty for 30 days or more.  It provides principles of support, standards of service, policies, tasks, rules, and steps governing all work required to support officer transfers and discharges.  It provides:

* in paragraph 3-5, the procedures for unqualified resignations 
* in paragraph 3-7c, any former enlisted member of the RA on active duty as an officer who is not eligible to retire as an officer but has sufficient creditable service to retire in an enlisted status may be enlisted for the purpose of retirement
* retirement for RA or RC commissioned officer with 20 years of active federal service provided at least 10 years is active commissioned service

9.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It establishes standardized policy for preparing and distributing the DD Form 214 and provides:

	a.  The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty. It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge.

	b.  A DD Form 214 will be prepared for each Soldier upon termination of active duty by reason of retirement or expiration term of service (ETS), physical disability separation, or punitive discharge under the Uniform Code of Military Justice.  Officers who revert to enlisted status will also be provided a DD Form 214 (paragraph 2-1a(7)(b)).

10.  Department of Defense Financial Management Regulation 7000.14-R, Volume 7b:  Military Pay Policy and Procedures – Retired Pay provides:

	a.  Retired pay is the product of multiplying the retired pay base by the years of service multiplier.  For individuals who first became Soldiers after 31 July 1986 and who are eligible under current regulations to serve continuously to 20 years, must choose between the High-3 and a modification of the High-3 known as the CSB (Career Status Bonus)/REDUX retired pay plans.

	b.  In computing retired pay, other than for disability or nonregular service retirement, the retired pay multiplier is the product of two and one-half percent and the member’s years of creditable service.  The retired pay multiplier for a post-July 1986 member who has accepted the Career Status Bonus (CSB) and who retires with less than 30 years of creditable service is reduced at the time of retirement by 1 percentage point for each full year of creditable service less than 30 and 1/12th of 1 percent for each full month of creditable service less than a full year.  Retired pay is recomputed on the first day of the month after the member reaches age 62.  The retired pay is increased as if the member’s pay had not been affected by a reduction in the retired pay multiplier.

11.  Title 10, U.S. Code section 3964 provides an enlisted Soldier or warrant officer retiree with less than 30 years of active service who previously held a 


higher grade can apply for advancement to that higher grade on the retired list.  In order to be advanced on the retired list to the highest grade held satisfactorily, a Soldier had to have actually held the higher grade, that is, he/she must have been promoted to, paid in that grade, and served at that grade for the required statutory or regulatory time.  The Soldier may apply for advancement on the Retired List when combined service on the active duty and Retired List equals 30 years.  A "satisfactory" determination of service at a particular grade has pay implications associated with it.

DISCUSSION AND CONCLUSIONS:

1.  The applicant makes two requests:

* issue him a DD Form 214 for his commissioned service
* verify that his retired pay is properly computed

2.  The applicant had 13-plus years of enlisted service followed by 6-plus years of commissioned service.  When he reached 20 years of active federal service he sought to retire.  Because he did not have 10 years of commissioned service and could not retire as an officer, he tendered his unqualified resignation as a CPT, then enlisted as a SGT for 1 day in order to retire for length of service.

3.  Regarding the DD Form 214 issue, by regulation the applicant should have received a DD Form 214 when he was discharged to revert to enlisted status.  Therefore, he should be issued a DD Form 214 similar to his DD Form 214 for the period 30 October 2008 through 31 October 2008, but with the following minimum information:

* 4a – CPT
* 4b – O-3
* 11 – 70BOO HEALTH SERVICES OFFICER – 6 YRS 7 MOS
* 12a – 2002  03  08
* 12b – 2008  10  29
* 12c – 0006  07  22
* 12d – 0013  06  04
* 12h – 2005  07  01
* 23 – DISCHARGE
* 23 – HONORABLE
* 25 – ARMY REGULATION 600-8-24 PARA 3-7
* 26 – FHC
* 27 – NA
* 28 – IMMEDIATE ENLISTMENT OR REENLISTMENT

4.  Regarding retired pay, DFAS states the applicant is being paid as a SGT/E-5 based on a calculation of his High-3 salary as a SGT/E-5 with 20 years of active service.  This is correct; however, according to Title 10, U.S. Code, section 3964, when his active service and his service on the Retired List equals 30 years, he may apply to the Army Grade Determination Review Board for advancement to the highest grade he satisfactorily held – in this case CPT/O-3E.  At that time, his retired pay would be recalculated.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x___  ____x___  ____x___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was 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 issuing him a DD Form 214 for his commissioned service with the following minimum information:

* 4a – CPT
* 4b – O-3
* 11 – 70BOO HEALTH SERVICES OFFICER – 6 YRS 7 MOS
* 12a – 2002  03  08
* 12b – 2008  10  29
* 12c – 0006  07  22
* 12d – 0013  06  04
* 12h – 2005  07  01
* 23 – DISCHARGE
* 23 – HONORABLE
* 25 – ARMY REGULATION 600-8-24 PARA 3-7
* 26 – FHC
* 27 – NA
* 28 – IMMEDIATE ENLISTMENT OR REENLISTMENT

2.  The Board further determined that the evidence presented was 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 adjusting his retired pay.



      ____________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)                                         AR20110024408



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ABCMR Record of Proceedings (cont)                                         AR20110024408



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