PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           25 March l999                  
	DOCKET NUMBER:   AC97-09391
				   AR1998000699

	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. Loren G. Harrell		Director	
	Mr. Richard H. Allen		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. Elzey J. Arledge, Jr.		Member	
	Mr. Lester Echols		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, correction of his military records to give him additional Reserve service credit for retired pay purposes.   

3.  The applicant states, in effect, that he was not given sufficient service credit under the provisions of Title 10, United States Code, Section 1405 (10 USC 1405).  He claims that he should have been given active service credit for 
19 years, 5 months and 13 days service, but only received active service credit for l7 years, 0 month and 6 days. 

4.  The applicant’s military records show that he had prior United States Marine Corps Reserve (USMCR) service from 25 August 1967 through 3 December 1971. Of this service, 6 months and 2 days was active service and 3 years, 
9 months and 7 days was inactive service.

5.  On 4 December 1971, the applicant enlisted in the Army National Guard (ARNG) and served  through 1 September 1980 in an inactive status.  During this period he had 5 months and 5 days active service (various periods of active duty for training) and 8 years, 3 months and 23 days inactive service.

6.  On 2 September 1980, the applicant was called to active duty as a member of the Army Guard/Reserve (AGR), which service is considered active duty.  On 
26 August 1996, the applicant requested voluntary retirement from active duty effective 31 October 1996, which was approved.  On the same date, Orders 
168-12 were issued by the Oregon National Guard Headquarters (ORARNG), directing the reassignment of the applicant to the U. S. Army Transition Point, Fort Lewis, Washington, for the purpose of processing for retirement.  Paragraph 2 of that same order, directed the applicant’s release from active duty, effective 31 October l996, and placement on the retired list on the next day.  In this order he was given credit for l7 years and 6 days active service; 29 years, l month and 
6 days basic pay service; and l9 years, 6 months and l3 days Title l405 service.  

7.  A DA Form 2339 (Application for Voluntary Retirement) was prepared at that time by personnel officials at Fort Lewis, Washington.  Item 14 on this form contains a chronological listing of dates of service, both active and inactive.  Item 16 shows Total Active Service for Retirement; item 17 shows Total Inactive Service Creditable for Basic Pay Only and item 18 shows Total Service for Basic Pay Purposes.  In the applicant’s case, these respective service computations were as follows:

Total Active Service:       17 years, 00 months and 06 days
Total Inactive Service:     12 years, 01 month and 00 days
Total Service for Pay:      29 years, 01 month and 06 days

8.  On 31 October 1996, the applicant was released from active duty for retirement, in pay grade E-7.  His DD Form 214, issued at Fort Lewis, in items 12c (Net Active Service this Period) and 12d (Total Prior Active Duty) gave him credit for 17 years and 6 days active service.  In item 12e of the form he was given credit for 12 years and 1 month prior inactive service.  Therefore, the sum of his service was equal to 29 years, 1 month and 6 days total active and inactive service.  

9.  On 1 November 1996, the applicant was placed on the USAR Retired List and as been receiving retired pay since that date.  As of 2 January 1997 he was receiving $1119.00 gross retired pay.   

10.  However, effective 10 February 1996, 10 USC 1405 was changed.  In effect, this change permitted enlisted service members with inactive Army Reserve (USAR) service, as well as ARNG service, to receive retirement service credit (active duty credit) for up to 60 earned retirement point credits a year between 1949 and the date of the change to 10 USC 1405 (10 February 1996), and 
75 points a year after that date.  Essentially, retirement credit for inactive service credit is determined by dividing the number of retirement points earned by 
30, which results in months of retired credit.  Partial month credits are not permitted (rounded down).  

11.  The ARNG Readiness Center has advised the Board that the applicant’s active service credit is in error.  Essentially, the active duty installation that retired the applicant failed to give the applicant 25 additional months of service credit (766 ARNG retirement points (earned between August 1967 and August 
1980 when he was called to active duty in the AGR program) divided by 
30 equals 25.5 or 25 months credit).  This would result in the applicant receiving approximately $143 more retirement pay per month (plus cost of living changes) from 1 November 1996 to the present time.  

12.  However, final determination of pay entitlement, and any back pay owed rests with the Defense Finance and Accounting Service.  This document will be provided to those officials for final auditing and payment of any claim for monies due, and adjustment of current retired pay computations.  

13.  The applicant was provided a copy of the ARNG Readiness Center’s advisory opinion for comment or rebuttal, but he failed to respond.

CONCLUSIONS:

1.  Due to a change in Federal statute in early 1996, the applicant was entitled to an additional 25 months active service credit, based on 766 retirement point credits he earned between 1967 and 1980 while in the USMCR and the ARNG, at the time of his voluntary retirement from active duty on 31 October 1996.   

2.  Therefore, the DA Form 2339 prepared by officials at Fort Lewis is in error in items 17 and 18.  He should be credited with 19 years, 1 month and 6 days active service, and his inactive service credit should be reduced to 10 years, 
0 months and 0 days.  The total service for pay purposes of 29 years, 1 month and 6 days remains the same.  

3.  These changes should also be reflected in paragraph 2 of the ORARNG retirement order and in items 12d and 12e of his DD Form 214.

4.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing:

	a.  that the individual concerned be credited with a total of 19 years, 
1 month and 6 days active service for retirement purposes in accordance with Title10, United States Code, Section 1405; 

b.  that he had an additional 10 years, 0 months and 0 days inactive service for basic pay purposes; and.
	c.  that he had a total of 29 years, 1 month and 6 days service for pay purposes.
2.  That upon completion of the above actions, as an exception to normal policy, that a new DD Form 214 be issued to the individual concerned showing the corrected entries in items 12d and 12e vice the document issued on 31 October 1996.  All other entries would remain unchanged.  

3.  Further, that a new statement of service/or other appropriate document be prepared to show these corrected service credits for retired pay purposes and that these be provided to the Defense Finance and Accounting Service for final computation of retired pay entitlements. 

4.  Additionally, that upon completion of the above actions, a copy of the corrected documents be provided to the ARNG Readiness Center for initiation of corrective action to Oregon National Guard Orders l68-12, dated 26 August l996, to show the appropriate changes in service credit in paragraph 2 of that order.
5.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__MKP__  __EJA___  __LE ___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AC97-09391/AR1998000699	
SUFFIX		
RECON		
DATE BOARDED	19990325	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY	DASA	
ISSUES         1.	135.02	
2.	128.14	
3.		
4.		
5.		
6.