BOARD DATE: 27 August 2015
DOCKET NUMBER: AR20140020491
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:
a. advancement on the Retired List to the rank/grade of captain (CPT)/O-3; and
b. retired pay at the O-3E (CPT with over 4 years of enlisted service) rate.
2. The applicant states:
* his retired grade should be changed from sergeant (SGT)/E-5 to CPT/O-3
* he was a commissioned officer for 13 years and should be paid at the
O-3E rate
3. The applicant provides:
* certification of entitlements on release from active duty
* chronological statement of retirement points
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* discharge orders, dated 8 August 1989
* National Guard Bureau (NGB) Form 337 (Oaths of Office), dated 15 May 1976
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 was born on 23 July 1949.
3. He enlisted in the U.S. Navy on 31 December 1968. He was honorably released from active duty on 30 April 1973 after completing 4 years and 4 months of creditable active service.
4. Having prior enlisted service in the Army National Guard (ARNG), he was appointed as a second lieutenant in the ARNG on 15 May 1976.
5. He transferred to the U.S. Army Reserve (USAR) on 13 June 1980.
6. He was ordered to active duty in an Active Guard Reserve status on 14 June 1983. He was promoted to CPT effective 13 September 1986. On 12 September 1989, he was released from active duty. He completed 6 years, 2 months, and 29 days of active service during this period.
7. Records show he submitted a resignation of his commission in the Army. He requested resignation effective upon the date of his enlistment in the ARNG. He enlisted in the ARNG on 9 April 1990.
8. On 1 August 1992, he was honorably discharged from the ARNG in the rank of SGT/E-5 and assigned to the USAR Individual Ready Reserve for completion of his contractual obligation.
9. He retired and was placed on the Retired List effective 23 July 2009 in the rank of SGT by Orders P09-947696 issued on 6 September 2012 by the U.S. Army Human Resources Command.
9. Paragraph 2-11c(2) of Army Regulation 135-180 (Qualifying Service for Retired Pay Nonregular Service) states if the Soldier was transferred to the Retired Reserve or discharged on or after 25 February 1975, the retired grade will be that grade which a commissioned officer or enlisted Soldier held while serving on active duty or in an active Reserve status for at least 185 days or 6 calendar months.
10. Paragraph 010203(A)(2) of the Department of Defense Financial Management Regulation, volume 7A, chapter 1 (Basic Pay), dated May 2015, states commissioned officers in pay grade O-1, O-2, or O-3 who are credited with over 4 years (i.e., at least 4 years and 1 day) of prior active service as an enlisted member are entitled to the special rate of basic pay for pay grade O-1E, O-2E, or O-3E.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that he should be advanced on the Retired List to the rank/grade of CPT/O-3 appears to have merit.
2. Although he retired from the USAR in the rank of SGT/E-5, he also held an appointment as a CPT/O-3 in an active Reserve status from June 1983 to September 1989.
3. Since the governing regulation states the retired grade will be that grade which a commissioned officer held while in an active Reserve status for at least 185 days or 6 calendar months, it would be appropriate to correct his military records to show he was placed on the Retired List in the rank and pay grade of CPT/O-3 effective 23 July 2009.
4. Since he was credited with over 4 years of prior active service as an enlisted member (U.S. Navy service), he is entitled to the special rate of basic pay for pay grade O-3E.
BOARD VOTE:
___x_____ _x_______ ___x__ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined the evidence presented is 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 he was placed on the Retired List in the rank and pay grade of CPT/O-3 effective 23 July 2009; and
b. paying him all retired pay due in the special rate of basic pay for pay grade O-3E 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.
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