IN THE CASE OF:
BOARD DATE: 23 April 2014
DOCKET NUMBER: AR20130012762
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 records to show he completed 28 years, 11 months, and 4 days of service for percentage purposes under the provisions of Title 10, U.S. Code (USC), section 1405 (10 USC § 1405), referred to as "1405 service."
2. The applicant states:
* the U.S. Army Human Resources Command (HRC) has his official retirement orders from 2002, which show he completed 23 years, 4 months, and 4 days of 1405 service
* HRC now acknowledges he served 5 years and 7 months as a retiree recall, from 1 December 2002 through 1 July 2008
* the two periods of service equal 28 years, 11 months, and 4 days, the total for correction of his 1405 service
* HRC will not provide a reason why it is not honoring the 1405 service stated in his 2002 retirement orders
* he has 2 boxes of military records he believes support his request for correction of his 1405 service
* HRC refuses to make an effort to obtain that information so that it may accurately account for his service
* HRC has come up with 3 different calculations of his 1405 service, the latest increasing his service from 28 years, 3 months, and 13 days to 28 years, 7 months, and 22 days
* this latest calculation does not account for any service during the period from 1979 to 1982 (2 years, 11 months, and 11 days), despite evidence to the contrary
* HRC still cannot accurately determine his correct amount of 1405 service
* certain Army entities that were previously responsible for service accountability no longer exist; therefore, HRC cannot obtain an accurate accounting of his creditable 1405 service
3. The applicant provides an Army Reserve Personnel Center (ARPC) Form 249-E (Chronological Statement of Retirement Points), dated 6 January 2011, and a copy of an email string between himself and members of HRC, bearing the title "Service Computation."
CONSIDERATION OF EVIDENCE:
1. The applicant has benefitted from several re-computations of his 1405 service, which were completed by HRC on 26 August 2002, 9 January 2009, 1 December 2009, 3 July 2012, and 26 February 2013.
2. Additionally, he has petitioned the Army Board for Correction of Military Records (ABCMR) on two previous occasions in an effort to obtain a more favorable result vis-à-vis the calculation of his 1405 service. These cases were promulgated under Docket Number AR20080017893 on 24 September 2009 and Docket Number AR20120002390 (administratively closed) on 5 December 2012.
3. On 17 June 1969, the applicant was appointed as a Reserve commissioned officer of the Army. His record shows he served in the Judge Advocate Generals (JAG) Corps.
4. He served in the U.S. Army Reserve (USAR) throughout his career, in positions of increased responsibility, including extended periods of active duty in the Active Guard Reserve (AGR) Program. On or about 12 June 1995, he was promoted to the rank/grade of colonel (COL)/O-6.
5. On 26 August 2002, in preparation for his upcoming active federal service (AFS) retirement, a DA Form 7301-R was completed by the USAR Personnel Command (AR-PERSCOM), which later reorganized HRC. This form shows:
* he was credited with 21 years, 5 months, and 21 days of AFS
* he was credited with 1 year, 9 months, and 13 days of additional service (retirement points after 1 June 1958)
* he was credited with 23 years, 4 months, and 4 days of total service for percentage purposes (1405 service)
6. Orders P-08-290086, issued by AR-PERSCOM on 26 August 2002, ordered his retirement from active duty effective 30 November 2002, with subsequent placement on the Retired List the following day. These orders show he was credited with 21 years, 5 months, and 21 days of AFS and 23 years, 4 months, and 4 days of 1405 service.
7. On 30 November 2002, he was honorably retired from the Army in the rank/grade of COL/O-6. His DD Form 214 (Certificate of Release or Discharge from Active Duty) for this period of active duty is not available for review.
8. On 1 December 2002, he was recalled to active duty from his retired status and began another period of extended active duty.
9. On 30 June 2008, he was released from active duty and returned to the USAR Control Group (Army of the United States Retired List). His DD Form 214 for this period shows he was credited with an additional 5 years and 7 months of active Federal service.
10. On 19 October 2008, the applicant petitioned the ABCMR, stating his computation of service for retirement purposes was incorrectly computed; therefore, he was not being paid his full entitlement.
11. The case was promulgated under ABCMR Docket Number AR20080017893, on 24 September 2009, wherein the Board granted the applicant partial relief by directing HRC to thoroughly audit his records, with his participation, to accurately derive his proper 1405 service.
12. In an effort to accurately capture his 1405 service, HRC completed no less than 5 separate automated Service Computations for Separation.
DATE COMPLETED
TOTAL AFS
TOTAL 1405 SERVICE
9 JANUARY 2009
26 YRS, 4 MOS, 10 DYS
28 YRS, 1 MO, 23 DYS
1 DECEMBER 2009
26 YRS, 6 MOS, 00 DYS
28 YRS, 3 MOS, 13 DYS
3 JULY 2012
26 YRS, 6 MOS, 00 DYS
28 YRS, 3 MOS, 13 DYS
26 FEBRUARY 2013
26 YRS, 10 MOS, 09 DYS
28 YRS, 7 MOS, 22 DYS
13. 10 USC § 1405 (Years of Service) provides general military law vis-à-vis the computation of retired pay.
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) the Soldier's years of active service;
(2) the years of service, not included in clause (1), with which he 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 would be entitled to be credited under section 12733 of this title if he were entitled to retired pay under section 12731 of this title.
b. Fractional Years of Service In determining a members years of service under subsection(a):
(1) 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
(2) any remaining fractional part of a month shall be disregarded.
DISCUSSION AND CONCLUSIONS:
1. The applicant's request for correction of his records to credit him with 28 years, 11 months, and 4 days of 1405 service was carefully considered and was determined to have merit.
2. The evidence of record shows:
* he was credited with 21 years, 5 months, and 21 days of AFS at the time of his retirement in 2002
* he was granted 1 year, 9 months, and 13 days of service based on USAR service while not on active duty
* when totaled together, these two periods equate to 23 years, 3 months, and 4 days
3. His Officer Service Computation for Retirement, dated 26 August 2002, credits him with 23 years, 4 months, and 4 days of 1405 service on page 1 of the form; however, page 2 of the form shows the same calculation as 23 years, 3 months, and 4 days, which appears to be the more accurate calculation.
Since his retirement pay calculations have been based, thus far, on the 23 years, 4 months, and 4 days calculation, this figure will continue to be used throughout the remainder of this case.
4. He served an additional 5 years and 7 months as a retiree recall. This service is documented on a DD Form 214 and cannot be refuted.
5. When added together, his two periods of AFS equate to 27 years and
21 days. This service is documented in various places throughout his record and cannot be refuted.
6. When adding his 1 year, 9 months, and 13 days of additional service to his previously-credited AFS, the total 1405 service equates to 28 years, 10 months, and 4 days.
7. When adding his additional 5 years and 7 months to his previously-credited 1405 service of 23 years, 4 months, and 4 days, the new total 1405 service equates to 28 years, 11 months, and 4 days. This figure is consistent with the applicant's request.
BOARD VOTE:
____X____ ___X_____ ___X_____ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined that the evidence presented was 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 directing HRC to credit him with 28 years, 11 months, and 4 days of 1405 service
and forwarding this information to the Defense Finance and Accounting Service to ensure the applicant's proper total 1405 service is used to compute his retired pay and pay him any back retired pay resulting from this change.
_____________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) AR20080017893
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20130012762
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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