IN THE CASE OF:	  

		BOARD DATE:	  20 September 2012

		DOCKET NUMBER:  AR20120014274 


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 reconsideration of his earlier request for:

* correction of his records to show he is entitled to pay at the captain (CPT)/O-3E (prior enlisted service) rate vice CPT/O-3
* payment of all back pay and entitlements as a result of this correction

2.  The applicant states, in effect, he contacted officials at the Defense Finance and Accounting Service (DFAS) and a DFAS policy official informed him that, by law, Reserve officers (O-1 through O-3) who are paid out of Reserve funds and have 1,460 points are eligible for the "E" pay.  The requirement to be paid out of Reserve funds was eliminated effective 24 November 2003.  Essentially, members who have 1,460 points from Reserve or Active Duty (active time would have to be converted to Reserve time to compute points over 1,460) would be authorized the "E" pay.

3.  The applicant provides an email from a DFAS policy official.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20110022954 on 15 May 2012.

2.  The applicant provides an email from a DFAS official which was not previously considered; therefore, it is new evidence and as such warrants consideration by the Board.

3.  The applicant enlisted in the U.S. Army Reserve (USAR) on 28 September 1990 and appears to have been assigned to a troop program unit.  His exact unit of assignment is not available for review with this case.

4.  He attended and successfully completed training requirements for military occupational specialty (MOS) 91D (Operating Room Specialist) from 23 September 1991 through 20 December 1991.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) for this period of service is not available for review with this case.  The applicant indicated he does not have a copy of this DD Form 214.

5.  He appears to have been transferred from the USAR to the Texas Army National Guard (ARNG) on 8 March 1993.  He was subsequently discharged from the ARNG on 4 April 1995 for the purpose of enlisting in another component.  His National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) for this period is not available for review with this case.  The applicant indicated he does not have a copy of this NGB Form 22.

6.  He enlisted in the Regular Army on 5 April 1995 and he held MOS 13R (Field Artillery Fire-Finder Radar Operator).  He was honorably released from active duty on 7 March 1998.  His DD Form 214 for this period of service shows he completed 2 years, 11 months, and 3 days of creditable active service.

7.  Prior to his release from active duty, he enlisted in the Texas ARNG on 3 March 1998.  He was discharged from the ARNG on 30 November 2001 for the purpose of accepting a commission.  His NGB Form 22 for this period of service is not available for review with this case.  The applicant indicated he does not have a copy of this NGB Form 22.

8.  His NGB Form 23A (ARNG Annual Statement), dated 20 August 2012, shows he completed 1,733 retirement points in an enlisted status as of 27 September 2001.  This document does not reflect how many points he earned in an enlisted status between 27 September 2001 and 1 December 2001, the date he was appointed as a commissioned officer.

9.  He was appointed as a Reserve commissioned officer in the ARNG and executed the oaths of office on 1 December 2001.  He was promoted to first lieutenant/O-2 on 20 May 2003 and to CPT on 28 August 2006.

10.  On 5 October 2010, the Texas ARNG issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).

11.  On 6 September 2011 in an email to the Texas ARNG G-1, the NGB Financial Operations Manager, ARNG Financial Services Center, stated he reviewed the applicant's Retirement Points Accounting Management (RPAM) system at the request of the Texas ARNG Inspector General's (IG) Office and the RPAM showed the applicant obtained more than 1,460 points creditable for retirement making him eligible for the higher rate of pay based on the legislative change for the determination of "over 4 years of enlisted service prior to commissioning."  Effective 1 January 2002, he would be entitled to pay at the higher rate for all duty funded by the ARNG personnel appropriation.  Additionally, he would be entitled to the higher rate of pay for all duty performed effective 24 November 2003.

12.  On 20 September 2011 in an email to the applicant, an official in the Texas ARNG Office of the IG stated his office conducted an inquiry into the applicant's request for assistance.  The inquiry revealed that the Texas ARNG G-1 is in disagreement with the NGB Financial Operations Manager's guidance pertaining to the applicant's O-E pay because of technical jargon.  As such, the Texas ARNG G-1 is unable to amend any promotion orders to reflect O-E pay.  The applicant was advised to petition the ABCMR.

13.  On 19 October 2010, he petitioned the ABCMR for correction of his records to show he is authorized payment at the special category O-1E, O-2E, and O-3E rates.  On 15 May 2002, the ABCMR denied his request.  The Board stated:

* prior to being commissioned in the Texas ARNG 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
* 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

14.  On 11 June 2012, he contacted a policy official at DFAS by email requesting a clear interpretation of the Department of Defense Financial Management Regulation, volume 7A, chapter 1.  Specifically, he contended that the Board denied his request and stated:

They refused saying the regulation is not retroactive; only officers commissioned after 1 January 2002 are entitled.  My view is the regulation is inclusive, meaning all commissioned officers in grades O-1 through O-3 meeting the requirement of 1,460 retirement points for enlisted or warrant officer service are entitled to the pay.

15.  On 11 June 2012, a DFAS policy official responded to him by email and stated:

As for Reserve officers and the "E" pay, chapter 1 has subparagraphs with specific effective dates which are based on new laws being implemented.

The subparagraphs you cite, 010103.A.5 and 6 do not state only newly commissioned members are authorized the E pay.  Subparagraph 5 refers to O-1 to O-3s who are paid out of reserve funds and have 1,460 points are eligible for the E pay.  Subparagraph 6 eliminated the reserve fund requirement and effective November 24, 2003, members who have over 1,460 points from reserve or active statuses (active time would have to be converted to reserve time to compute points over 1,460) would be authorized the E pay.

You should take your enlisted/warrant officer records to your servicing personnel office for them to prepare a DD [sic] Form 1506, Statement of Service which would be used to substantiate whether you are eligible for the "E" pay or not in accordance with chapter 1.  As for 'retroactive' provisions, if a member meets the criteria in the provisions based upon their status at the time, the member would be entitled to the provisions of the law.  If a member had 1,460 points as of January 1, 2002, the E pay would be applicable.

16.  Per telephone conversation between the case analyst of record and the applicant on 16 August 2012, the applicant indicated that his chain of command refused to prepare a DA Form 1506 for him.  However, in a subsequent telephone conversation between the case analyst of record and the applicant's commander on 20 August 2012, the applicant's commander indicated the applicant has not submitted his enlisted or warrant/
commissioned officer records to his servicing personnel office to substantiate his claim of a pay problem.

DISCUSSION AND CONCLUSIONS:

1.  The applicant served in an enlisted capacity prior to being commissioned as an officer.  His previous DD Form 214 and NGB Forms 22 which are needed to help substantiate his claim for the higher pay are not available for review with this case.  However, the NGB Form 23B appears to support his contention in that it shows he accrued a sufficient number of Reserve retirement points to meet the criteria for the higher pay.  It is accepted as sufficient evidence to warrant granting the relief requested.

2.  The DA Form 1506 is used to document a member's request for verification of military service.  It is also used by DFAS to adjust a member's entry pay date or basic pay entry effective date which affect the rate and period of basic pay entitlement.

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 amendment of the ABCMR's decision in Docket Number AR20110022954, dated 15 May 2012.  As a result, the Board recommends that all ARNG and Department of the Army records of the individual concerned be corrected by:

     a.  showing a DA Form 1506 was prepared in January 2002 confirming he had sufficient prior enlisted service (over 1,460 points for retirement) to make him eligible for O1-E/O2-E/O3-E pay, as applicable; and

     b.  paying him, in accordance with paragraphs 010103.A.5. and 010103.A.6. of the Department of Defense Financial Management Regulation, any back pay 
and allowances, effective no earlier than 1 January 2002 or 24 November 2003, as applicable, due as a result of the above 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)                                         AR20120014274



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ABCMR Record of Proceedings (cont)                                         AR20120014274



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