BOARD DATE:	    8 October 2015

		DOCKET NUMBER:  AR20150002326 


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 correction of his records to show his retired pay was calculated based at the rate for a captain (CPT)/O-3E vice CPT/O-3 effective 1 December 1996 and payment of all back pay due as a result of the correction 

2.  The applicant states he retired from the Army on 1 December 1996 at Mannheim, Germany, in the rank/grade of CPT/O-3.  But for the purposes of pay, he was an O-3E since he had more than 4 years of prior enlisted service.  He recently reviewed his retirement documents and discovered his initial retirement pay was incorrectly calculated based on the O-3 pay grade ($3,600 per month in 1996) rather than his O-3E pay grade ($3,654 per month in 1996).  He first entered the Army in June 1973 so his retirement pay should have been based on his last monthly base pay of $3,654.  He expected the calculation to be correct and due to the process of moving and establishing a new job in Germany, he did not notice the error at the time.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 30 November 1996, Defense Finance and Accounting Service (DFAS) Military Leave and Earnings Statement (LES), DFAS Summary of Retired Pay Account, and DFAS Retiree Account Statement.

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’s records show he enlisted in the Regular Army (RA) on 7 June 1973.  He was honorably discharged on 25 January 1979 for the purpose of immediate reenlistment.  He completed 5 years, 7 months, and 19 days of creditable active service during this period of service.  The DD Form 214 he was issued for this period of service is not available for review with this case.  

3.  He reenlisted in the RA on 26 January 1979.  He was honorably discharged on 25 January 1983 and he was transferred to the U.S. Army Reserve (USAR).  The DD Form 214 he was issued for this period of service shows he completed 4 years of creditable active service during this period of service and had a total of 9 years, 7 months, 19 days of enlisted service.  

4.  On 24 May 1986, he was appointed as a Reserve second lieutenant in the USAR with a concurrent call to active duty.  On 1 February 1991, he was promoted to the rank of CPT.

5.  Orders S45-1, dated 12 March 1996, issued by the U.S. Total Army Personnel Command, retired him from active duty effective 30 November 1996 and placed him on the Retired List in the rank of CPT on 1 December 1996.  This orders stated he completed over 4 years of active service as an enlisted member (emphasis added). 

6.  The applicant provides a DFAS LES for the period 1-31 October 1996 wherein it shows his pay grade a "3E" and his monthly base pay as $3654.

7.  He was honorably retired on 30 November 1996 in the rank of CPT and he was placed on the Retired List on 1 December 1996.  He completed 10 years, 6 months, and 7 days of creditable active service during this period of service and had a total of 20 years, 1 month, and 26 days of active service for retired pay.  

8.  The applicant provides a DFAS Summary of Retired Pay Account, dated 23 December 1996, wherein it shows:

* his retired rank as CPT
* his service for basic pay was 20 years, 1 month, and 26 days
* the active duty pay rate for a CPT with 20 years of service effective 1 January 1996 was $3,600.00
* the percent multiple for 20.08 years was 50.20 percent (%)
* his retired pay was calculated at $3,600.60 X .5020 and equaled $1,807
* the cost of living adjustment was $45 for a gross monthly pay of $1,852

9.  On 6 October 2015, by email, a DFAS official verified the applicant's finance record reflects that he retired as an O-3 and not an O-3E.

10.  Department of Defense (DOD) Financial Management Regulation, dated January 2010, volume 7A, chapter 1, states, in part, effective 20 May 1958, commissioned officers in pay grades O-1, O-2, or O-3 who are credited with over 4 years 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.  Effective 1 October 1993, commissioned officers in pay grades O-1, O-2, or O-3 who are credited with over 4 years of combined prior active service as an enlisted member and warrant officer are entitled to the special rate of basic pay for pay grade O-1E, O-2E, or O-3E.

DISCUSSION AND CONCLUSIONS:

The evidence of record confirms the applicant, a CPT with over 10 years of commissioned service, had over 9 years of enlisted service when he retired on 30 November 1996 and was placed on the Retired List on 1 December 1996.    His retirement orders, dated 12 March 1996, shows he had at least 4 years of enlisted service and the October 1996 LES he provided shows he was being paid as an O-3E prior to his retirement date.  It appears an error occurred when DFAS calculated his retired pay based the pay grade of O-3 vice O-3E, the pay grade he held at the time.  He meets the criteria for correction of his records to show his retired pay was correctly calculated at the pay grade of O-3E effective 1 December 1996.

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: 

* Defense Finance and Accounting Service correcting his records to show his retired pay was calculated at the pay grade of O-3E effective 1 December 1996
* paying him any back retired pay due as a result of the above 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.



ABCMR Record of Proceedings (cont)                                         AR20150002326





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ABCMR Record of Proceedings (cont)                                         AR20150002326



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