BOARD DATE:	  20 October 2015

		DOCKET NUMBER:  AR20140011295 


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 his retired pay be recalculated to reflect the higher amount he would have received if he had retired either the previous year or when he was originally supposed to retire.

2.  The applicant states if he had retired on 31 December 2007, he would be receiving approximately $50 a month more retirement pay than he does having retired on 31 July 2008.  In addition, he was originally approved to retire on 
31 January 2008; however, he voluntarily stayed longer for the good of his unit.  If he retired when originally approved, he would be receiving about $40 a month more.  The reason for this is that he only received a partial cost of living allowance (COLA) on 1 January 2009.  When he read about the Tower Amendment he thought this may apply to his situation.  He believes the intent of the Tower Amendment is that he not make less in retired pay for serving longer.  The amounts would be even more 5 years later.

3.  On 2 January 2014, he sent an electronic inquiry to the Defense Finance and Accounting Service (DFAS) regarding this issue.  On 20 January 2014, he received a letter, dated 16 January 2014, from DFAS advising that they could not assist him.  On 11 February 2014, he submitted an application to the Army Board for Correction of Military Records (ABCMR).  He received a letter, dated 
10 March 2014 from the Army Review Boards Agency (ARBA) advising him he must first submit his request to U.S. Army Human Resources Command (HRC).  On 3 April 2014, he submitted a request to HRC explaining his situation and asked for assistance.  He received a letter, dated 6 May 2014 from HRC advising him they were unable to assist him and advised he resubmit a request to ARBA for action.

4.  The applicant provides:

* his orders for retirement, dated 9 March 2007
* amendment, dated 19 September 2007, to his retirement orders
* his electronic inquiry to DFAS
* a letter, dated 16 January 2014, from DFAS
* DD Form 149 (Application for Correction of Military Records), dated 
11 February 2014
* a letter, dated 10 March 2014, from ARBA
* his letter, dated 3 April 2014, to HRC
* an information paper, dated 6 May 2014, from HRC 

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.  On 22 September 1982, he enlisted in the Regular Army.  He served on active duty continuously until his retirement.

3.  U.S. Army Installation Management Command, Headquarters, U.S. Army Garrison, Fort Bragg, NC Orders 068-0287, dated 9 March 2007, show the applicant was to retire on 31 January 2008 and be placed on the Retired List the following day.

4.  On 16 July 2007, he requested his retirement date be delayed until 31 July 2008.

5.  U.S. Army Installation Management Command, Headquarters, U.S. Army Garrison, Fort Bragg, NC Orders 262-0276, dated 19 September 2007, amended his retirement orders to show his retirement date as 31 July 2008.
6.  On 31 July 2008, he was retired and placed on the Retired List the following day.  He completed 25 years, 10 months, and 9 days of continuous active service.

7.  On 2 January 2014, he sent an electronic inquiry concerning his retired pay to DFAS.

	a.  It had bothered him for years that his retired pay was less than if he had retired a year earlier.  He then heard about the Tower Amendment.

	b.  The full COLA the year he retired (2008) was 5.8 percent (%), but he only received 1.2%.  If he had retired 1 December 2007, he would make $50 - $100 more a month than he is now, having retired 1 August 2008.  At one point he was approved to retire in 2007, but he voluntarily pulled it for the good of his unit.  

8.  On 16 January 2014, DFAS advised the applicant they were unable to process his request because any correction of record must be initiated through his branch of service.  Changes to retirement factors are considered to be a correction of military records.  He was provided a DD Form 149 and advised to send it to his branch of service.

9.  On 11 February 2014, he submitted a DD Form 149 to the ABCMR.  A letter, dated 10 March 2014, from ARBA advised him he must first exhaust his administrative remedies by submitting his request to HRC.

10.  On 6 May 2014, HRC advised him they could not assist him and referred him back to the ABCMR.

11.  On 22 April 2015, an advisory opinion was received by email from DFAS.

	a.  The applicant was eligible for computation of his retired pay under the Tower Amendment; however, calculations under the Amendment were not more beneficial than under the current pay bill.

	b.  The applicant specifically addresses the 5.8% COLA.  What the member discounted was the high 36 base amount (BA) used to compute his pay would be much less ($4,798.66) than the original high 36 BA ($5,100.55) used for his current pay.  Even applying the higher COLA does not increase his gross retired pay.

	c.  Worksheets were attached to the email.

12.  On 10 May 2015, the applicant submitted a rebuttal to the advisory opinion.
	a.  He could not argue with the findings provided by DFAS using the dates they did, he requested ABCMR use his calculations and rule in his favor.

	b.  DFAS showed his high 36 BA as $5,100.56 and his years of service as 25.83 years.  This resulted in a gross pay of $3,293.00.  Adding the partial COLA of 1.2% in December 2008 made $3,332.00.

	c.  The applicant stated if he had retired 1 month earlier, on 30 June 2008 his high 36 BA would have been $5,082.87 and his years of service would have been 25.75 years.  This would have resulted in a gross retired pay of $3,272.00.  Adding the partial COLA of 3.8% in December 2008 would have made $3,396.00.

	d.  The applicant states that based on his calculations, over the years from retirement to May 2015, the total amount less that he has received is $4,976.00 and gets more with every COLA increase.

13.  An email, dated 29 June 2015, from DFAS states if he would have retired 
1 June 2008, he would have lost years of service in the calculation of his retired pay.  If his retirement date is changed after the fact he will be in debt to the military for 2 months.

14.  Department of Defense Regulation 7000.14-R (Financial Management Regulation), Volume 7B (Military Pay Policy - Retired Pay), Chapter 3 (Gross Pay Computation) provides the standard way of computing basic retired pay, which includes Application of Saved Pay, Tower Amendment, and Special Provisions.
Section 0304 TOWER AMENDMENT, 030401. Basic Provisions states:

   a.  A member, who retires on or after 1 January 1971, and who fully qualifies for retirement on a date earlier than the actual retirement date, receives the most favorable rate of pay as though the member had actually retired or been transferred on the earlier date:

   (1)  After becoming retirement-eligible on or after 1 January 1971. 

   (2)  Based upon the grade and the service creditable on the earlier computation date. (For retirements on or after 5 October 1994, the grade used in the computation cannot be higher than the grade in which the member is retired.)

   (3)  Using the rate of basic pay applicable to the member on the earlier computation date in determining the retired pay base.

15.  Title 10, United States Code, section 1401a (Adjustment of retired pay and retainer pay to reflect changes in Consumer Price Index), paragraph (f), states the monthly retired pay of a member or a former member of an armed force who initially became entitled to that pay on or after 1 January 1971, may not be less than the monthly retired pay to which he would be entitled if he had become entitled to retired pay at an earlier date based on the grade in which the member is retired, adjusted to reflect any applicable increases in such pay under this section.  In computing the amount of retired pay to which such a member or former member would have been entitled on that earlier date, the computation shall be based on his grade, length of service, and the rate of basic pay applicable to him at that time, except that such computation may not be based on a rate of basic pay for a grade higher than the grade in which the member is retired.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his retirement pay should be recalculated to reflect the higher amount he would have received if he had retired either the previous year, or when he was originally approved to retire.

2.  DFAS states that computing his retired pay based on an earlier date would result in less time in service being used in the computation and even the higher COLA would not increase his gross retired pay.

3.  Based on the applicant's response to the advisory opinion, he is aware that re-computation of his retirement pay may create a debt in the short term.  He does not dispute the DFAS calculations for his retirement date.  However, he is adamant that he was treated unfairly and believes using the Tower Amendment would provide for a higher future retired pay amount for him.  He continues to argue that his calculations using an earlier retirement date would result in a higher future retired pay amount.  He contends that over the years he has already received $4,976.00 less in retired pay and he continues to lose more with each COLA increase.

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 his retired pay was computed under the alternative provisions of the Tower Amendment in a timely manner and retroactively paying him any difference for the entire period of his retirement.




      _______ _ 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)                                         AR20140011295





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