BOARD DATE: 11 December 2014
DOCKET NUMBER: AR20140007471
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 an adjustment of his retired pay from SPC/E-4 to SFC/E-7.
2. The applicant states, in effect, the Retirement Pay Department did not consider his DA Form 2339 (Application for Voluntary Retirement).
3. The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty), DA Form 2339, promotion order, and orders placing him on the retired list.
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army on 27 August 1987. He successfully completed training and held military occupational specialty 11B (Infantryman). He was honorably discharged on 19 March 1996. The highest rank/grade he attained during this enlistment was SSG/E-6. The applicant enlisted again in the Regular Army on 15 October 1997.
2. Orders 41-37, issued by U.S. Army Human Resources Command, dated
10 February 2005, shows the applicant was promoted to the rank/grade of SFC/E-7.
3. On 16 April 2013, a general court-martial at Shaw Air Force Base, SC, found the applicant guilty of larceny of printer toner cartridges, stealing seven printer toner cartridges, and violating a general regulation. As a result he was sentenced to a forfeiture of pay in the amount of $3,640 dollars and reduction to the rank/grade of SPC/E-4 effective 30 April 2013.
4. Orders 323-1327, issued by Headquarters, U.S. Army Training Center and Fort Jackson, Fort Jackson, SC, dated 19 November 2013, released the applicant from active duty and placed him on the Retired List on 1 April 2014, in the retired rank/grade of SPC/E-4.
5. His DD Form 214 shows he was retired in the rank/grade of SPC/E-4 on
31 March 2014 due to sufficient service for retirement. He was credited with a total of 25 years and 9 days of creditable active duty service. His DD Form 214 further shows his effective date of pay grade as 2013 04 30
(30 April 2013).
6. Department of Defense Financial Management Regulation (FMR), volume 7B (Military Pay Policy and Procedures-Retired Pay), chapter 3 (Gross Pay Computation), section 030112 (Exception to High-36 Month Retired Pay Computation for Members Retired Following a Disciplinary Reduction in Grade) states:
a. Members or former members who entered the Uniformed Services on or after 8 September 1980 will have their retired pay base computed using the high 36-month average, except for the members described as follows, whose retired pay base is based on the final basic pay of the grade prescribed in title 10 U.S.C. 1406, rather than the highest 36-month average of basic pay
b. In the case of an enlisted member retired within 3 years after having been reduced in grade as prescribed in subparagraph 030112.A.1 (as a result of a court-martial sentence) and who was not subsequently promoted to a higher enlisted grade (or appointed to a warrant or commissioned grade), the retired pay base will be computed using the final basic pay rather than the high 36-month average. If, however, the member is subsequently promoted to a higher enlisted grade (or appointed to a warrant or commissioned grade), then the members retired pay will be computed using a high 36-month average computation. The computation will use the final 36-months of basic pay, except for the months in which the member served in a grade higher than the grade in which retired. The basic pay for such months shall be the rates that would have applied to the
member at that time if serving in the grade in which retired.
DISCUSSION AND CONCLUSIONS:
1. Evidence shows the applicant did hold the grade of SFC/E-7. However, on the day before he retired he held the grade of SPC/E-4 following a reduction due to a general court-martial conviction.
2. There is no indication that he was subsequently promoted to a higher grade.
3. The applicants contention that his retired pay should be based on the average of the highest 36-month average is found to be without merit.
4. He retired within three years after being reduced in grade and was not subsequently promoted to a higher grade; therefore, he is excluded from the high 36-month retired pay computation. His retired pay will be based on his final basic pay.
5. In view of the foregoing, he is not entitled to the requested relief.
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.
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