BOARD DATE:	30 July 2013  

		DOCKET NUMBER:  AR20120022401 


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 all monies owed him as result of his service in the ranks of second lieutenant (2LT)/O-1, first lieutenant (1LT)/O-2, and captain (CPT)/O-3.

2.  The applicant states that during his service as a Regular Army officer he was underpaid from 1982 - 1986, 1990, 1993, and 1994.  He recently completed a thorough review of his military records and leave and earnings statements (LES). He served for 4 years and 12 days as an enlisted Soldier prior to becoming a Regular Army 2LT on 6 August 1982.  Therefore, he was entitled to pay as an officer with prior active enlisted service in pay grades O-1E, O-2E, and O-3E.

3.  The applicant provides:

* self-authored statement, dated 30 November 2012
* pay tables ranging in date from 1981 - 1994
* 14 LESs ranging in date from September 1982 - December 1990
* Excel spreadsheet entitled "Military Pay Claim"
* 6 LES archive printouts
* Service computation for retirement worksheet, dated 29 January 1992
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

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 enlisted in the Regular Army on 3 August 1976.  His DD Form 214 shows he was honorably released from active duty after completing 4 years of net active service and transferred to a troop program unit (TPU) to complete his remaining service obligation.  His records also indicate he completed additional enlistments/reenlistments in the U.S. Army Reserve after he was released from active duty.  This service resulted in his completing 12 days of active duty for annual training (AT).

3.  His record contains a DA Form 71 (Oath of Office - Military Personnel), dated 16 August 1982, showing he accepted his appointment to 2LT.  He entered active duty on that date.

4.  His record does not contain orders promoting him to 1LT; however, the LES he provided for the period 1-31 December 1984 shows his date of rank (DOR) to 1LT as 15 December 1984.

5.  Orders Number 7-134, issued by the Total Personnel Army Command (PERSCOM) on 27 January 1986 promoted him to CPT with the effective 
1 March 1986.

6.  Orders Number 48-022, issued by PERSCOM on 8 April 1994 promoted him to the rank of major (MAJ) with an effective date and DOR of 1 May 1994.

7.  His record contains a service computation for retirement worksheet, dated  
29 January 2002, which shows in item 7 (Enlisted Service) that from 3 August 
1976 to 2 August 1980 he was credited with 4 years of net active service and from 18 May 1981 to 29 May 1981 he was credited with 12 days of net active service.

8.  He was honorably retired from active duty on 31 March 2002.  His DD Form 214 shows in:

* item 12c (Net Active Service this Period) - "19 years, 7 months, 15 days"
* item 12d (Total Prior Active Service) - "4 years, 12 days"
* item 12e (Total Prior Inactive Service) - "2 years, 5 months, 22 days"

9.  During the processing of this case an advisory opinion was obtained from the Defense Finance and Accounting Service (DFAS).  The DFAS official stated that the applicant requested correction to pay entitlement from 16 August 1982 to 
30 April 1994 because he completed over 4 years of previous active enlisted service prior to becoming a commissioned officer.  He served on active duty from 3 August 1976 to 2 August 1980, a period of 4 years, and in the USAR from 
3 August 1980 to 17 May 1981, during which time he served on active duty for a period of 12 days for AT.  The combination of these time periods entitles the applicant to the pay rate for over 4 years of enlisted service pay from the time of his promotion to 2LT through the end of his time as a CPT.

10.  The applicant was provided with a copy of the advisory opinion but did not respond.

11.  He provided copies of his active duty LESs covering various periods of service in the ranks of 1LT, 2LT, and CPT.  He also provided pay charts from the pertinent period.  Based on a cursory review of the documents he provided it appears he was either paid at the appropriate "O-E" pay rates or overpaid based on his years of active service.  

12.  He provided a self-authored statement, dated 30 November 2012, wherein he requested an adjustment of the military pay he received during calendar years (CY) 1982, 1983, 1984, 1985, 1986, 1990, 1993, and 1994.  

13.  He attached all of the Army Pay Tables from 1982 until 1994, from which he created a spreadsheet to determine the amount of money that he was underpaid for pay grades O-1 through O-3.  He subtracted his pay for O-1 through O-3 from O-1E through O-3E and included promotion dates and cumulative years of service in his calculations.  According to his calculations, he was underpaid a total of $3,672.27 during 8 specific years of service as follows:

14.  He provided the spreadsheet he created and used to determine the amount of military pay he should have received at his O/E pay rates based on what he believes to be the proper years of service for that pay.  On this spreadsheet he indicated:

* from August 1982 to February 1984 he should have been paid as an O-1E with over 6 years of active service
* from February 1984 to August 1984 he should have been paid as an O-2E with over 6 years of active service
* from September 1984 to February 1986 he should have been paid as an O-2E with over 8 years of active service
* from March 1986 to September 1986 he should have been paid as an 
O-3E with over 8 years of active service
* from October 1986 to October 1988 he should have been paid as an O-3E with over 10 years of active service
* from November 1988 to November 1990 he should have been paid as an O-3E with over 12 years of active service

* from December 1990 to December 1992 he should have been paid as an O-3E with over 14 years of active service
* from January 1993 to April 1994 he should have been paid as an O-3E with over 16 years of active service

15.  DOD Pay Regulation, Volume 7A (Active Duty & Reserve Pay), Chapter 1 (Creditable Service), contains information about the following subjects:  Service Which Is Creditable, Service Not Creditable, Active Enlisted and/or Warrant Officer Service for Members in Basic Pay Grades O-1E, O-2E, or O-3E, and computations of creditable service.  It states:

	a.  Section 010103 states commissioned officers with over 4 years of prior active service as an enlisted member, warrant officer, or combined service in both grades are entitled to count such service for purposes of computing basic pay for longevity purposes.  Such prior service includes all active service, in either the Regular or Reserve Component or both (i.e., active duty for training in enlisted or warrant officer status, annual Reserve training duty, and full-time National Guard duty).  Service on active duty or active duty for training for at least 4 years and 1 day satisfies the over 4 years of service requirement under this section.

	b.  Section 010103A(2) (Creditable Prior Enlisted Service) states effective 
20 May 1958, commissioned officers in pay grades O-1, O-2, or O-3 who are credited with over 4 years (i.e., at least 4 years and 1 day) 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.

	c.  Section 010104 (Computation of creditable service) states all basic pay date computations start from the date of the member’s most recent entry on duty without a break in service.  For officers, it is the date of acceptance of a commission.  



DISCUSSION AND CONCLUSIONS:

1.  The applicant argues, in effect, that he was underpaid during 1982, 1983, 1984, 1985, 1986, 1990, 1993, and 1994 because he was not paid properly as an O-1E, O-2E, and O-3E at the proper pay rate for years in service at these pay grades.  

2.  When the applicant was commissioned on 16 August 1982, as stated by the DFAS official and shown on his service computation for retirement, his combined active enlisted service was properly calculated as 4 years and 12 days.  This service entitled him to the pay rate O-1E for over 4 years of enlisted service from the time beginning at his promotion to 2LT and continuing through the end of his time as a CPT.

3.  His record should be corrected to show, as of 16 August 1982, he was entitled to pay at the rate of O-1E for over 4 years of enlisted service.  Additionally his record should be audited to ensure he continued to be paid at the proper E/O rate continuing through the end of his time as a CPT.  Further, if the DFAS audit of his military pay records reveals he is entitled to additional monies, he should be paid the full amount owed him.

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, as of 16 August 1982, he was entitled to pay at the rate of 
O-1E/O-2E/O-3E for over 4 years of enlisted service
* auditing his military pay records to ensure he was paid at the proper E/O rate from the time he entered active duty as a 2LT through the end of his time as a CPT
* paying him any additional monies he is owed if the results of DFAS audit show he is entitled to additional monies



      _______ _ 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)                                         AR20120022401





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120022401



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1