IN THE CASE OF:	  

		BOARD DATE:	  1 September 2015

		DOCKET NUMBER:  AR20150001526 


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, correction of his military service records to show he is authorized active duty and reserve military pay as a commissioned officer with over 4 years enlisted service, and retired pay based on grade O-3E.

2.  The applicant states that he was appointed as Reserve commissioned officer in 2001.  He submitted documents to his human resources (HR) office for consideration of O-1E pay status.  At the time it required being credited with at least 1,460 retirement points and he had earned 1,499 retirement points. However, he was told by HR officials that he was not eligible and he was not granted O-1E pay status.  He believes he was misled about his pay status.

3.  The applicant provides a copy of his AHRC Form 249-E (Chronological Statement of Retirement Points).

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 U.S. Army Reserve (USAR), Delayed Entry Program, on 2 October 1990 for a period of 8 years with enlistment in the Regular Army (RA) on 15 January 1991 for a period of 3 years.  Records show he was born in December 1970.

3.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant entered active duty this period on 15 January 1991, was honorably released from active duty (REFRAD) on 1 July 1993 based on expiration term of service, and transferred to an Army National Guard (ARNG) unit.  He had completed 2 years, 5 months, and 17 days net active service this period.

4.  An NGB Form 22 (Report of Separation and Record of Service) shows the applicant enlisted in the ARNG of the United States and Texas ARNG on 2 July 1993 and he was honorably separated on 9 September 1997 for enlistment or reenlistment into another component of the armed forces.  He was credited with 4 years, 2 months, and 8 days net service this period; 3 months and 13 days of prior Reserve Component (RC) service; 2 years, 5 months, and 17 days of prior active Federal service; and 6 years, 11 months, and 8 days of total service for pay.

5.  Two DD Forms 4 (Enlistment/Reenlistment Document – Armed Forces of the United States) show the applicant enlisted in the USAR on 10 September 1997 for a period of 3 years and again on 6 August 2000 for a period of 6 years.

6.  Headquarters, U.S. Total Army Personnel Command, St. Louis, MO, memorandum, dated 17 October 2001, appointed the applicant as a Reserve commissioned officer of the Army, in the rank of second lieutenant (2LT), effective upon his acceptance.  It also shows the effective date of appointment was 6 November 2001.

7.  A DD Form 214 shows the applicant entered active duty this period on
7 February 2003, was honorably REFRAD on 28 May 2004 based on completion of required active service, and transferred to a USAR unit.  He had completed 
1 year, 3 months, and 22 days net active service this period.  It also shows in:

* item 4a (Grade, Rate, or Rank):  2LT
* item 4b (Pay Grade):  O1


8.  Headquarters, USAR Command, Fort McPherson, GA, memorandum, dated 29 December 2003, promoted the applicant as a Reserve commissioned officer of the Army to the rank of first lieutenant (1LT) effective 23 November 2003.

9.  U.S. Army Human Resources Command (USAHRC), St. Louis, MO, Orders B-02-701448, dated 22 February 2007, promoted the applicant as a Reserve commissioned officer of the Army to the rank of captain (CPT), effective and with a date of rank of 8 February 2007.

10.  A DD Form 214 shows the applicant entered active duty this period on
1 December 2008, was honorably REFRAD on 22 December 2009 based on completion of required active service, and transferred to a USAR unit.  He had completed 1 year and 22 days net active service this period.  It also shows in:

* item 4a:  CPT
* item 4b:  O03

11.  USAHRC, RC Retirement, Fort Knox, KY, memorandum (Twenty Year letter), dated 23 August 2011, shows the Chief, Reserve Retirements, notified the applicant that his eligibility for retired pay had been established upon attaining age 60.

12.  Headquarters, 63rd Regional Support Command, Mountain View, CA, Orders 11-350-00011, dated 16 December 2011, released the applicant from assignment on 1 January 2012 and assigned him to the USAR Control Group (Retired Reserve), in the rank of CPT, effective 2 January 2012.

13.  The applicant's Chronological Statement of Retirement Points shows his retirement year beginning date is 2 October 1990.

   a.  It also shows, in pertinent part, the total points creditable from 2 October 1990 through 1 October 2001 equates to a sum of 1,499 retirement points.

   b.  The Retirement Points Detail section shows for the period 2 October 2001 through 5 November 2001 he was credited with 10 retirement points for inactive duty training.

14.  Department of Defense (DoD) Financial Management Regulation 7000.14-R, volume 7A (Military Pay Policy and Procedures – Active Duty and Reserve Pay), Chapter 1 (Basic Pay), paragraph 0102 (Creditable Service), shows for: 

   a.  Active Enlisted and/or Warrant Officer Service for Members in Basic Pay Grades O-1E, O-2E, or O-3E:  Commissioned officers with over 4 years of prior active service as an enlisted member, warrant officer, or combined service in both grades are entitled to count such service for purposes of computing basic pay for longevity purposes.  Such prior service includes all active service, in either the Regular or Reserve Component or both (i.e., active duty for training in enlisted or warrant officer status, annual Reserve training duty, and full-time National Guard duty).  Service on active duty or active and inactive duty for training for at least 4 years and 1 day satisfy the over 4 years of service requirement under this section.

   b.  Creditable Prior Enlisted Service:  Commissioned officers in pay grades 
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.

   c.  Table 1-8 (Monthly Rates of Basic Pay – Commissioned Officers Credited With Over 4 Years of Active Duty Enlisted and/or Warrant Officer Service) shows in:

* Note 2, creditable service to be taken into account for purposes of this table is active service as an enlisted member or as a warrant officer or as both an enlisted member and a warrant officer, in the case of a commissioned officer on active duty who is paid from funds appropriated for active-duty personnel; or a commissioned officer on active Guard and Reserve duty.
* Effective November 24, 2003, creditable service to be taken into account for purposes of this table in the case of a commissioned officer is service as an enlisted member or as a warrant officer, or as both an enlisted member and warrant officer, for which more than 1,460 points [1,460 points divided by 365 days = 4 years] have been credited to the officer for the purposes of Title 10, U.S. Code, section 12732(a)(2).

15.  DoD Financial Management Regulation 7000.14-R, volume 7B (Military Pay Policy – Retired Pay), Chapter 1 (Initial Entitlements – Retirements), shows that military retired pay is divided into three general categories:  retired pay for regular service, retired pay for non-regular (reserve/guard) service, and retired pay for physical disability.  With the exception of retirement for physical disability and certain temporary authorities for early retirement, a member must be credited with completion of at least 20 years of service in order to be eligible for retired/ retainer pay.  The retired pay base is determined based upon the date the member first entered military service and whether the member is retiring under regular, reserve, or disability provisions of law.  It also shows the various retired pay formulae.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military service records should be corrected to show he is authorized active duty and reserve military pay as a commissioned officer with over 4 years of enlisted service and retired pay based on grade O-3E.

2.  Records show the applicant enlisted on 2 October 1990, he served in an enlisted status in the USAR and RA through 5 November 2001, and he was credited with 1,509 total retirement points.

3.  The evidence of record shows the applicant was appointed as a Reserve commissioned officer of the Army in the rank of 2LT, effective 6 November 2001.  

   a.  He continued to serve in the USAR and he was promoted to:

* 1LT effective 23 November 2003
* CPT effective 8 February 2007 

   b.  He was released from assignment in the USAR on 1 January 2012 and assigned to the USAR Control Group (Retired Reserve), in the rank of CPT, effective 2 January 2012.

   c.  He is eligible for retired pay upon attaining age 60 in December 2030.

4.  The evidence of record fails to show that Army officials credited the applicant with over 4 years as an enlisted member (for purposes of computing basic pay for longevity purposes) to establish his entitlement to the special rate of basic pay (for pay grades O-1E, O-2E, or O-3E) effective upon (or subsequent to) his appointment as a Reserve commissioned officer.

5.  In view of the foregoing, the applicant's military service records should be corrected to show he is authorized creditable prior enlisted service for his prior active service as an enlisted member and entitled to the special rate of basic pay for pay grades O-1E, O-2E, and O-3E while serving as a Reserve commissioned officer from 6 November 2001 through 1 January 2012.  In addition, his military service records should be corrected to show he is authorized military retired pay and entitled to the special rate of basic pay for pay grade O-3E upon application and effective upon attaining age 60.

6.  Therefore, the applicant's records should be corrected, as recommended below.


BOARD VOTE:

___x____  ___x____  ___x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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 he is authorized creditable prior enlisted service for his prior active service as an enlisted member and entitled to the special rate of basic pay for pay grades O-1E, O-2E, and O-3E while serving as a Reserve commissioned officer from 6 November 2001 through 1 January 2012.  Additionally, his military service records should be corrected to show he was assigned to the U.S. Army Reserve Control Group (Retired Reserve) in the rank of captain/pay grade rate O-3E, effective 2 January 2012.

2.  As a result of this correction, the Defense Finance and Accounting Service shall be notified of the Board's determination and conduct a review of the individual's U.S. Army Reserve pay account to determine his entitlement to any additional basic pay for the period of service under review, notify him of the results of the review, and (if applicable) pay him all back pay (i.e., pay, less any withholdings) due as a result of this correction.  In addition, his military retired pay records should be corrected to show he is authorized military retired pay and entitled to the special rate of basic pay for pay grade rate O-3E effective upon attaining the age of 60.




      _______ _   _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)                                         AR20150001526



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ABCMR Record of Proceedings (cont)                                         AR20150001526



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