IN THE CASE OF:	

		BOARD DATE:	  10 April 2014

		DOCKET NUMBER:  AR20130012711 


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, correction of his record to show he completed 13 years, 2 months, and 20 days of creditable military service for retired pay.

2.  The applicant states:

* the 2 May 1985 letter he received from Retired Pay Operations, U.S. Army Finance and Accounting Center, Indianapolis, IN is incorrect and should show his service as 13 years, 2 months, and 20 days instead of 11 years, 5 months, and 10 days
* his service is as follows:

*	active duty – 5 September 1968 to 31 May 1971
*	active duty - 31 August 1973 to 24 July 1980
*	Active Guard Reserve (AGR) – 21 September 1981 to 19 April 1985

* he had approximately 2 months of full-time training for the Army National Guard (ARNG) for school during June and July 1981
* he inquired about his retired pay and was told his concerns would be looked into; however, there has been no change to his retired pay

3.  The applicant provides:

* correspondence to and from the Defense Finance and Accounting Service (DFAS)
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* letter from Retired Pay Operations, U.S. Army Finance and Accounting Center, Indianapolis, IN, dated 2 May 1985
* Orders Number D-01-001439, issued by U.S. Army Reserve Personnel Center, St. Louis, MO, dated 8 January 1991
* 3 DD Forms 214 (Certificate of Release or Discharge from Active Duty)
* NGB Form 23 (Retirement Credits Record)
* DA Form 2-1 (Personnel Qualification Record)
* DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States)
* DA Form 20 (Enlisted Qualification Record)

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.  A DD Form 1966 (Application for Enlistment – Armed Forces of the United States) filed in the applicant's records shows his prior service as follows:

* Regular Army, 5 September 1968 to 31 May 1971, honorable discharge
* U.S. Army Reserve (USAR), 1 June 1971 to 30 August 1973, honorable discharge

3.  The applicant's DD Form 214 for the period ending 31 May 1971 shows he was credited with 2 years, 8 months, and 26 days of active service.

4.  A DD Form 4, dated 9 December 1975, shows:

* the applicant enlisted in the Regular Army on 31 August 1973 for a 3-year period and he was honorably discharged on 8 December 1975 
* he immediately reenlisted on 9 December 1975 for a 4-year period 
* he had 5 years and 4 months of total active service and 2 years and 3 months of inactive service 

5.  His DD Form 214 for the period ending 8 December 1975 shows he was credited with 5 years and 4 days of active service.

6.  A DD Form 214 for the period ending 24 July 1980 shows he entered active duty 4 January 1980 and was honorably discharged for hardship reasons on 24 July 1980.  This DD Form 214 shows he was credited with 6 months and 21 days of active service and 9 years and 1 month of total prior active service.

7.  On 21 January 1981, the applicant enlisted in the Texas ARNG for a 1-year period.

8.  His DD Form 214 for the period ending 19 April 1985 shows he was ordered to active duty during the period 21 September 1981 through 19 April 1985.  His net active service for this period was 3 years, 6 months, and 28 days and he had 9 years, 7 months, and 19 days of total prior active service.

9.  Item 18 (Remarks) of his NGB Form 22 shows he was AGR during the period 21 September 1981 to 19 April 1985.

10.  On 19 April 1985, the applicant was honorably retired and placed on the temporary disability retired list (TDRL).

11.  On 2 May 1985, Retired Pay Operations notified the applicant of his retired pay computation.  A summary of his retired pay computation shows:

* his date of retirement as 20 April 1985
* his retired pay grade as E-7
* service for basic pay:  16 years, 7 months, and 15 days
* service for retired pay:  11 years, 5 months, and 10 days
* his percent of disability:  70 percent
* the active duty rate in effect 1 January 1985 provided his most favorable base of $1,540.80

12.  The record is void and the applicant does not provide a copy of the order removing him from the TDRL and permanently retiring him.

13.  On 21 April 2010, DFAS provided the applicant a detailed explanation of how his retired pay was calculated.  This document shows his retired pay was calculated using two methods:
* his disability percentage (70 percent) which resulted in $1,540.80 in monthly retired pay
* service time (11 years and 5 months) which resulted in $439.00 in monthly retired pay

14.  On 4 May 2010, the applicant petitioned the ABCMR to correct his creditable service for retired pay.

15.  On 21 January 2011, the ABCMR advised the applicant that his application and available records did not contain enough information for the Board to make a determination; therefore, his request was returned without action.  The applicant was further advised that DFAS did not calculate his retired pay based on his retirement DD Form 214 but rather on his retirement order.

16.  The applicant provides copies of correspondence to and from DFAS, record extracts, copies of his DD Forms 214, and NGB Form 22.  He does not provide a copy of the order removing him from the TDRL.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DFAS records are incorrect and that his retired pay should be calculated on 13 years, 2 months, and 20 days of active duty service.

2.  He provides copies of his DD Forms 214 and NGB Form 22 and these documents are not in question.  

3.  DFAS calculated the applicant's retired pay based two calculations:  disability percentage and service time.  In the applicant's case, even with the time he claims is correct (and which appears to be correct), payment of retired pay based on his 70 percent disability is more advantageous to him.  Therefore, his retired pay is based on his disability percentage rather than his active service.

4.  However, his record does not contain and he does not provide a copy of his TDRL orders.  Those orders are required to verify what they showed to be his service for retired pay.  

5.  Further, while it appears there is an error, because his pay is based on his disability rating there is no evidence that this error has harmed him.

6.  In view of the foregoing, there is no basis for granting the applicant's requested relief at this time.

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)                                         AR20130012711



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ABCMR Record of Proceedings (cont)                                         AR20130012711



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