BOARD DATE:	  15 January 2015

		DOCKET NUMBER:  AR20140008406 


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 correction of his retired pay to show entitlement to
O-3E pay vice E-7 pay and payment of any retroactive pay owed.

2.  The applicant states:

   a.  According to the Defense Finance and Accounting Service (DFAS), on 13 September 2012 he met the 30-year mark of combined service [for recalculation of his retired pay based on the highest rank he held] from the date he initially entered military service (DIEMS) on 14 September 1982.  In accordance with the information he received from DFAS, his retirement pay should be adjusted to O-3E pay and he should receive any retroactive pay.
   
   b.  He retired earlier than necessary due to instructions by his command and personnel at the Retirement Services Office, Fort Rucker, AL, who informed him that his retired pay would be based on his "highest 36" of commissioned service. If he had known this was inaccurate, he would have remained in the service to complete 10 years of commissioned service.  He received new information from DFAS and Army sources that stated his advancement in rank for retired pay should occur after 30-years of combined service from his DIEMS, which has already occurred.
   
   c.  Previous efforts to correct this error occurred in November 2006 but were rebuffed.  A Congressional inquiry was filed in 2012 with no results.  A renewed Congressional inquiry in 2013 revealed he was not eligible for advancement in rank on the Retired List.
3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 30 September 2006, three letters, and an email.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Mississippi Army National Guard (MSARNG) on 14 September 1982.  He served through several reenlistments and/or extensions and was promoted to the rank/grade of sergeant first class (SFC)/E-7 on 23 September 1996.  He was honorably discharged from the MSARNG on 17 October 2000 in the rank of SFC.

2.  He was appointed as a commissioned officer in the MSARNG, in the rank of second lieutenant, on 18 October 2000 with a concurrent call to active duty.  He executed an oath of office on that date.  He attained the rank of captain (CPT)/ O-3 on 16 December 2004.

3.  In conjunction with his upcoming retirement, he completed a DD Form 2656 (Data for Payment of Retired Personnel) on 8 June 2006.  In block 4 (Rank/Pay Grade/Branch of Service) he listed his rank/grade as SFC/E-7.  

4.  He was honorably retired on 30 September 2006 in the rank of CPT and he was transferred to the U.S. Army Reserve (USAR) Control Group (Retired).  He was placed on the Retired List on 1 October 2006 in the rank of SFC.  He completed a total of 20 years, 10 months, and 4 days of creditable active service (emphasis added).  He served as a commissioned officer for 5 years, 11 months, and 13 days.

5.  The DD Form 214 he was issued for this period of service contains the following entries:

* item 4a (Grade, Rate or Rank) – CPT
* item 4b (Pay Grade) – O-3
* item 12a (Date Entered Active Duty this Period) 18 October 2000
* item 12c (Net Active Service this Period) – 5 years, 11 months, 13 days
* item 12d (Total Prior Active Service) – 14 years, 10 months, 21 days
* item 12e (Total Prior Inactive Service) – 3 years, 2 months, 10 days
* item 18 (Remarks) – Retired List Grade SFC

6.  The applicant provides:

	a.  A letter to himself, dated 19 December 2006, from the Office of the Inspector General (IG), Joint Force Headquarters, MSARNG.  The letter stated an inquiry by the IG revealed his E-7 retired pay was calculated using the base pay rate applicable to his years of service for the last 36 months prior to his retirement.  His retired pay was initially based on his high-3 as an O-3E but this was incorrect.  DFAS made the correction so he was now being paid according to his retired grade of E-7.  Title 10, United States Code (USC), section 1407, paragraph e was the applicable reference and law used in determining his correct pay.  A copy of the section was enclosed.  Once he reached a total of 30 years of combined active and retired service, he could petition to be advanced to the highest grade he held (O-3E) and a pay calculation would be done at that time.

	b.  A letter from the Case Management Division, Army Review Boards Agency, dated 2 May 2008.  The letter stated an advisory opinion from DFAS stated his pay records were computed correctly and there was no action to be taken at that time.  DFAS also indicated he would be advanced on the Retired List on 6 December 2015 and his pay would be recomputed using his rank of CPT.  The DFAS point of contact information was provided to the applicant in case he had any questions for DFAS.

	c.  A letter to his Representative in Congress, dated 24 September 2012, from DFAS.  The DFAS official stated the applicant retired on 1 October 2006 in the rank of SFC with 24 years and 17 days of service for retired pay.  His retired pay was computed using the highest 36 months of pay as an E-7 while serving on active duty.

	d.  An email, dated 22 August 2013, from a DFAS official to a Congressional Liaison Office.  The email stated the applicant could contact his branch of service for advancement after 30-years from his DIEMS date and he was currently at the 30-year mark.  Nothing had been received from his branch of service to process a re-computation.

7.  Title 10, USC, section 1407, states an officer who retires with less than 10 years of commissioned service retires in their highest enlisted grade.  Service members receive a percentage of the final basic pay that corresponds to the retired grade and years of service at retirement.  Retired pay would be calculated based on the service member's high-36 average computed using only rates of basic pay applicable to months of active duty of the member as an enlisted member.

8.  Title 10 USC, section 3964, states retired members of the Army who are retired with less than 30 years of active service is entitled, when their active service plus their service on the Retired List totals 30 years, to be advanced on the Retired List to the highest grade in which they served on active duty satisfactorily or, in the case of a member of the ARNG, in which they served on full-time duty satisfactorily. 

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant was discharged from the MSARNG on 17 October 2000 in the rank of SFC and was subsequently appointed as a commission officer in the MSARNG on 18 October 2000.  He served as a commissioned officer on active duty for 5 years, 11 months, and 13 days and attained the rank of CPT.  

2.  He retired in the rank of CPT on 30 September 2006 and, as he had not served for 10 years as a commissioned officer, he was appropriately placed on the Retired List on 1 October 2006 in the rank of SFC.  In accordance with governing regulations and law, DFAS correctly computed his retired pay based on his high-36 months of SFC pay and the number of years he had served at the time of his retirement.

3.  The 30-year rule states a service member will be advanced to the highest rank they held and their retired pay will be recomputed based on the highest rank once they have a total of 30 years of combined active duty service and retired service.  It is not based on the service member’s DIEMS.  

4.  The evidence of record shows at the time of his placement on the Retired List on 1 October 2006 the applicant had served a total 20 years, 10 months, and 4 days of creditable active service.  Therefore, he would have to serve on the Retired List for 9 years, 1 month, and 26 days to reach the 30-years of combined service on 26 November 2015.  At that time, he would be entitled to advancement on the Retired List in the rank of CPT and have his retired pay recomputed based on O-3E.

5.  Although he had 3 years, 2 months, and 13 days of inactive service that counted toward his retired pay, inactive service is not included when determining the 30 years of combined active and retired service.

6.  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.



ABCMR Record of Proceedings (cont)                                         AR20140008406





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ABCMR Record of Proceedings (cont)                                         AR20140008406



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