BOARD DATE:	  2 July 2014

		DOCKET NUMBER:  AR20130019818 


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 her military records to show her non-regular retirement pay from the U.S. Army Reserve (USAR) was based on her service as a sergeant first class (SFC), pay grade E-7.

2.  The applicant states she is currently receiving retired pay based on her retirement as a first lieutenant (1LT), pay grade O-2.  However, she contends that she is losing $50.00 per month because her pay was not computed based on her enlisted rank of SFC, pay grade E-7.

3.  The applicant provides copies of:

* Orders 184-5, State of Florida, dated 16 September 1980
* Orders 146-009, State of Florida, dated 27 July 1992
* Orders 211-007, State of Florida, dated 27 October 1994
* NGB Form 23C (Army National Guard Retirement Points History Statement) prepared 18 June 2013
* Calculation for Survivor Benefit Plan (SBP) from U.S. Army Human Resources Command (HRC) Website (Two copies, one based on pay grade E-7 and one based on pay grade O-2)

CONSIDERATION OF EVIDENCE:

1.  Records show that the applicant, who was born on 2 February, 1954, entered the Army National Guard on 2 June 1974.

2.  Orders 184-5, State of Florida, dated 16 September 1980, announced the applicant's promotion to SFC effective that same day.

3.  Orders 146-009, State of Florida, dated 27 July 1992, announced the applicant's promotion from second lieutenant to 1LT, pay grade O-2, effective 
25 August 1992.

4.  Orders 211-007, State of Florida, dated 27 October 1994, announced the applicant's transfer to the USAR Control Group (Retired Reserve).

5.  An NGB Form 23C, prepared on 18 June 2013, shows that the applicant completed 20 consecutive qualifying years in the Army National Guard and attained 2334 total career points and 2274 points for retired pay.  Of these points, she earned 2018 and 1898 respective points while in an enlisted status.

6.  HRC calculations, as provided by the applicant, indicate that her monthly retired pay when computed based on pay grade E-7 is approximately $50.00 more than when computed based on pay grade O-2.

7.  Defense Finance and Accounting Service (DFAS) records show that the applicant is retired as a 1LT, pay grade O-2 and is receiving retired pay based on that status.

8.  Title 10, U.S. Code, section 12731, states that a person is entitled upon application to retired pay if the person is at least 60 years of age and has performed at least 20 years of service as computed under section 12732.

9.  Department of Defense Financial Management Regulation (DODFMR):

	a.  Volume 7A, section 010203 (Active Enlisted and/or Warrant Officer Service for Members in Basic Pay Grades O-1E, O-2E, or O-3E) states that 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 and inactive duty for training for at least 4 years and 1 day satisfy the over 4 years of service requirement under this section.  Commissioned officers in pay grades O-1, O-2, and O-3 who are paid from funds appropriated for Reserve personnel and credited with 1,460 points for retirement computed under 10 U.S.C. 12732(a)(2) service as a warrant officer and/or enlisted member are entitled to the special rate of basic pay for pay grade O-1E, O-2E, or O-3E. 

	b.  Volume 7A (Military Pay Policy - Active duty and Reserve), section 010303 (Saved Pay and Allowances) states an enlisted member who accepts an appointment as an officer will, following appointment, be paid the greater of:

	(1).  The pay and allowances to which such member would be entitled if the member had remained in the last enlisted grade held before appointment as an officer and continued to receive increases in pay and allowances authorized for that grade; or

	(2).  The pay and allowances to which the member thereafter becomes entitled as an officer.

	c.  Volume 7B (Military Pay Policy and Procedures-Retired Pay), chapter 1 (Initial Entitlements-Retirements), section  010104 (Retired Pay Formulae) states, in effect, that a member who is entitled to retired pay computed under more than one formula, is entitled to be paid under the applicable formula that is most favorable to the member.

10.  Army Regulation 135-180 (ARNG and Army Reserve Qualifying Service for Retired Pay Non-regular Service) states:

	a.   that a person granted retired pay will receive such pay in the highest grade (temporary or permanent) satisfactorily held by him or her during his or her entire period of service; and

	b.  states that retired pay is pay granted to Soldiers and former Reserve Component (RC) Soldiers under Title 10, U.S. Code, section 1331, after completion of 20 or more years of qualifying service and upon attaining age 60.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that her military records should be corrected to show her non-regular retirement pay from the U.S. Army Reserve (USAR) was based on her service as a sergeant first class (SFC), pay grade E-7 because she loses approximately $50.00 per month with it based on her retired grade of O-2.

2.  By law, a person granted retired pay will receive such pay in the highest grade satisfactorily held by her during her entire period of service.  However, when a Soldier is eligible to have her retired pay computed under more than one formula, she is entitled to receive pay based on the formula most favorable to her.
3.  In the applicant's case, the evidence of record shows she was promoted to SFC/E-7 in 1980.  Approximately 10 years later, she was commissioned as a 2LT and promoted to 1LT in 1992.  As enlisted, she earned more than the requisite 1460 retirement points for entitlement to pay grade O1E and O2E.

4.  The available evidence shows that retired pay computed based on her pay grade of O2 is less than what she would have received had she remained in an enlisted status and retired with in pay grade E-7.

5.  The applicant's record shows she was retired as a 1LT in pay grade O2 and is receiving retired pay based on that status.  However, based on using the most favorable formula, it would be appropriate to either compute her retired pay using her former pay grade of E-7 or to use a pay grade of O2E based on her retired points of more than 1460.

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:

	a.  showing the applicant requested her retirement as a first lieutenant but to have her pay based on the most advantageous formula, either as a E-7 or as O2E;

	b.  auditing her military pay records; and



	c.  paying her any monies due as a result of this 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)                                         AR20130019818





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ABCMR Record of Proceedings (cont)                                         AR20130019818



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