IN THE CASE OF:
BOARD DATE: 9 SEPTEMBER 2014
DOCKET NUMBER: AR20130021348
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 retroactive and future payment of retired pay at an
O-3E rate.
2. The applicant states he had 9 years of enlisted service prior to being commissioned. He was paid as an O-3E prior to retiring. He is currently in receipt of retired pay as an O-3 and does not know why his records do not show his pay grade as O-3E. He has only recently realized he had not been paid at that proper rate for over 40 years.
3. The applicant provides copies of the following at
* attachments 1 3, three DD Forms 214 (Report of Transfer or Discharge)
* attachment 4, DA Form 3713 (Data for Retired Pay) dated 5 July 1973
* attachment 5 , an enlargement of a section of the DA Form 3713
* attachment 6, a Military Pay Chart in effect at the date of retirement
* attachment 7, final pay statement dated 31 August 1973
* attachment 8, an enlargement of a portion of attachment 7
* attachment 9, pay statement from 1-31 Jul 1973
* attachment 10, Wage and Tax Statement for retirement pay only for 1973
* attachment 11, an internet document outlining the policy for determining retirement pay
* attachment 12, his retirement orders
* attachment 13, a current Retiree Account Statement from the Defense Finance and Accounting Service (DFAS)
* attachment 14, Standard Form 180 (Request Pertaining to Military Records)
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 17 July 1953 (with a short break in the U.S. Army Reserve from 12 April 1958 19 May 1958) and served in an enlisted status until 28 March 1963 for 9 years, 7 months, and 4 days.
3. He was commissioned on 29 March 1963 and served on active duty until he retired on 31 August 1973, a total of 20 years, 1 month, and 15 days for pay purposes. His DD Form 214 for this period shows his rank and pay grade as captain, O-3E.
4. His DA Form 3686 (Leave and Earnings Statement) for 1 31 July 1973 shows his basic pay as pay grade as O-3E, over 20 with receipt of $1,235.70 in basic pay.
5. His DA Form 2139 (Military Pay Voucher) for 1 31 August 1973 shows his basic pay as pay grade as O-3E, over 20 with receipt of $1,235.70 in basic pay.
6. A 1 January 1973 Monthly Basic Pay and Allowances chart shows an O-3 with over 20 years of service received $1,216.80 and an O-3E over 20 $1,235.70; a difference of $18.90.
7. A review of the applicant's retired pay record shows he is currently receiving retired pay as a captain/O-3. The available evidence does not include sufficient information to determine when or why his pay category was converted from O-3E to O-3.
8. Department of Defense Financial Management Regulations state that officers in pay grades O-1 to O-3 with at least 4 years and 1 day of active duty as a warrant and/or enlisted member are eligible for a special basic pay rate.
9. The Military Compensation Information sheet notes that a Soldier who retired prior to 8 September 1980 will have their retired pay calculated based on their final pay times a multiplier based on the number of years of service. For Soldiers with 20 years the multiplier is 50 percent.
DISCUSSION AND CONCLUSIONS:
1. The applicant had over 9 years of active duty enlisted service prior to being commissioned. His records show he was paid in the special basic pay rate of
O-3E while on active duty.
2. The available evidence shows he is now receiving retired pay at the O-3 level not the O-3E level. It is appropriate to correct the applicant's pay records to show entitlement to retired pay as an O-3E.
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 showing the applicant retired in the special basic pay rate of O-3E with entitlement to all due retired pay based on that rate 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) AR20130021348
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RECORD OF PROCEEDINGS
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ABCMR Record of Proceedings (cont) AR20130021348
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