RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         14 March 2006
      DOCKET NUMBER:  AR20050010250


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Ms. Kathleen A. Newman            |     |Chairperson          |
|     |Mr. Larry C. Bergquist            |     |Member               |
|     |Mr. Larry W. Racster              |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that the longevity pay rate for his
retired pay be changed to over 24 years of service.

2.  The applicant states, in effect, he was not aware of what the
difference in his retired pay would be at the time of his retirement.  He
claims that at the time of his retirement, he did not know that he would
have to stay one day over the years identified for the longevity pay scale
in order to qualify to receive retired pay at that increased rate.  He
states that no one informed him of the difference, or that by staying on
active duty one additional month, his retired pay would be based on
completing over 24 years of service.  The applicant claims that based on
his performance while on active duty, he deserves this adjustment to his
retired pay.

3.  The applicant provides a self-authored statement in support of his
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 30 September 1993.  The application submitted in this case
is dated 29 June 2005.

2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant's record shows that he was inducted into the Army and
entered active duty on 1 October 1969.

4.  On 30 March 1972, he was honorably discharged for the purpose of
enlistment in the Regular Army (RA).

5.  On 31 March 1972, he enlisted in the RA, and he continued to serve on
active duty through reenlistments until he was honorably separated for the
purpose of retirement on 30 September 1993.

6.  On 6 January 1993, the applicant submitted an Application for Voluntary
Retirement (DA Form 2339).  Item 18 (Total Service for Basic Pay Purposes)
of this form shows that he had completed 24 years, 00 months, and 00 days
of service for longevity pay scale purposes.

7.  A Data for Retired Pay (DA Form 3713) completed on the applicant during
his retirement processing shows that he would be placed on the Retired
List, in the grade of master sergeant (MSG), on 1 October 1993.  Item 29
(Basic Pay) shows the he completed 24 years, 00 months, and 00 days of
service for basic pay purposes.

8.  On 30 September 1993, the applicant was honorably separated for the
purpose of retirement.  The entries in Item 12 (Record of Service) on his
DD Form 214 (Certificate of Release or Discharge From Active Duty) confirm
he completed a total of 24 years of military service.  The applicant
authenticated this document with his signature in Item 21 (Signature of
Member Being Separated).

9.  Army Regulation 37-104-4 (Military Pay and Allowances Policy) provides
Department of the Army (DA) policies for entitlements and collections of
pay and allowances for active duty Soldiers.  It is used in conjunction
with Department of Defense Financial Management Regulation (DODFMR), Volume
7, Part A.  This regulation stipulates that the law prescribes the pay of
Soldiers and states, in pertinent part, that Soldiers are entitled to
receive pay according to their pay grades and years of service.

10.  The enlisted pay scale is contained in Table 1-10 of the DODFMR.  The
head column of this chart shows that each longevity pay increase takes
place not when a member reaches a certain number of years of service, but
when the member in fact goes "over" the identified number of years.  This
chart is commonly reproduced and published throughout the Army in various
periodical publications, and an explanation of the pay chart and
specifically how it applies to retired pay is routinely provided in pre-
retirement orientations and retirement briefings throughout the Army.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was unaware of the impact his not
staying on active duty to go over 24 years of service would have on his
retired pay, and the supporting documents he submitted were carefully
considered.  However, this factor is not sufficiently mitigating to support
the requested relief in this case.

2.  The pay chart contained in the DODFMR, information on how longevity pay
increases work, and of the applicability to retired pay is available
throughout the Army.  The information is contained in periodical
publications on a regular basis, it is part of all pre-retirement
orientations, and is made available at retirement briefings conducted
throughout the Army.

3.  Given the applicant's years of service, he was or should have been
familiar with the pay system, and more specifically with how longevity pay
increases worked and impacted retired pay.  Therefore, since there is no
evident error or injustice related to his retirement processing, there is
an insufficient evidentiary basis to support granting the requested relief
at this late date.

4.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 30 September 1993, the date of his
separation for retirement.  Therefore, the time for him to file a request
for correction of any error or injustice expired on 29 September 1996.  He
failed to file within the 3-year statute of limitations and has not
provided a compelling explanation or evidence to show that it would be in
the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___KAN _  __LCB __  __LWR__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                  _____Kathleen A. Newman____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050010250                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2006/03/14                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1993/09/30                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |Retirement                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |128.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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