MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            3 April 2001
	DOCKET NUMBER:   AR2000047182

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

	Mr. Carl W. S. Chun		Director	
	Mr. Hubert S. Shaw, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. Walter T. Morrison		Chairperson	
	Mr. Thomas F. Baxter		Member	
	Mr. John T. Meixell		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

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

APPLICANT REQUESTS:  In effect, that his date of separation from active duty and the date of placement on the Retired List be changed so that he receives retired pay in his current pay grade of E-8 at the over 20 year rate.  He also requests that this change be made “retroactive to my retirement.” 

APPLICANT STATES:  That he is currently receiving retired pay in pay grade 
E-8 with over 18 years of service.  He contends that he requested a retirement date of 1 February 1986, but his retirement orders “mandated” 31 January 1986 as his retirement date.  The applicant states that he expressed concern over this matter to his records manager [a staff sergeant] and his personnel officer [a chief warrant officer two], but the warrant officer told him that the Army works on a 30 day month and if the applicant “retired on the 31st day of January, it was the same as retiring on February 1st.”  The applicant contends he was advised that he would be placed on the retired list on 1 February 1986.

In an addendum to his application, the applicant states that the error occurred in February or March 1986, but that he could not apply for correction until now.  He states that he is a Vietnam Veteran with post-traumatic stress disorder (PTSD).  The applicant contends that he probably recognized the error when he received his first retirement pay check, but that his PTSD prevented him from asking for correction until this time.  The applicant concludes that had he known that he would have served one more day so that he qualified for retired pay at the over 20 year rate.

In support of his application, the applicant submitted two pages of an undated and unsigned copy of a DA Form 2339 (Application for voluntary retirement; the first page of a DA Form 2339, dated 12 February 1985; a copy of Department of the Army Orders 38-4, dated 4 March 1985; a copy of a DA Form 3713 (Data for Retired Pay), dated 7 march 1985; a copy of a DA Form 31 (Request and Authority for Leave), dated 6 August 1985; a copy of a DA Form 4187, dated 14 August 1985; a copy of a Request for Terminal Leave and Separation in Absentia, dated 16 August 1985; a copy of a 23 May 2000 Department of Veterans Affairs (DVA) decision on the applicant’s request for increased compensation. 

EVIDENCE OF RECORD:  The applicant's military records show:  

The applicant was released from active duty effective 31 January 1986 and placed on the Retired List the date following his separation based on Department of the Army Orders 38-4, dated 4 March 1985.

The applicant’s DD Form 214 (Certificate of Release or Discharge from Active Duty), which is authenticated in his own hand, shows he was separated from active duty effective 31 January 1986 by reason of voluntary retirement under the provisions of Army Regulation 635-200 (Enlisted Personnel), chapter 12, and transferred to the U.S. Army Reserve Control Group (Retired Reserve).  

The applicant provided a copy of a DA Form 2339 (Request for Voluntary Retirement) which is filled out in hand writing.  The form is undated and unsigned and shows in item 4 (Desired Retirement Date) the entry “1 February 1986.”

The applicant provided a copy of the first page of a DA Form 2339 which is type written and dated 12 February 1985.  This document shows the entry 1 February 1986 in item 4 and shows in item 14 (Chronological Dates of Military Service) the applicant’s service as 1 February 1966 to 31 January 1986, his active Federal service as “20” years, “00” months and “00” days.  Item 16 (Total Active Service Creditable for Retirement) shows the entry “20” years, “00” months and “00” days.  Item 18 (Total Service for Basic Pay Purposes) shows the entry “20” years, “00” months and “00” days.

The applicant’s service personnel records contain the original copy of the applicant’s DA Form 2339 and is authenticated by the applicant in two places and by the unit personnel officer (the previously identified chief warrant officer two).  All of the entries on this form show the applicant had “20” years, “00” months and “00” days of active Federal service and total service for basic pay purposes.

The applicant provided a copy of a DA Form 3713 (Data for Retired Pay) which is signed by the unit personnel officer (the previously identified chief warrant officer two) and dated 7 March 1985.  A carbon paper copy of this form is in the applicant’s service personnel records, and both copies show in item 36 (Remarks) the entry:  “Member will attain 20 years active Federal service on 31 January 1986.”  

The applicant provided a corrected copy of his retirement orders, dated 4 March 1985, which were published almost 11 months prior to the effective date of his separation from active duty.  These orders clearly state that the applicant was to be “released from active duty and, on the date following, placed on the Retired List.”  Just below this statement, the orders show the entry “Effective date: 31 January 1986.”

The applicant also submitted a request, authenticated in his own hand, for “Terminal Leave during the period 25 NOV 85 thru 31 JAN 86.”  This request is approved with the signature of the applicant’s company commander and dated 14 August 1985.  A DA Form 31 (Request and Authority for Leave) authenticated by the applicant and his unit commander is in his personnel records.

Army Regulation 635-200 (Personnel Separations) governs the separation of enlisted personnel from active duty.  The regulation states that soldiers retiring for service may be placed on the retired list only on the first day of the month, with release from active duty on the last day of the preceding month.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  The Board considered the applicant’s contentions that he expressed concern that he would not be paid for over 20 years service and that his personnel officer told him that the “Army works on a 30 day month and that “retiring on the 31st day of January … was the same as retiring on February 1st.”  However, evidence of record contradicts the applicant’s contentions.

2.  The Board noted that all records associated with the applicant’s retirement, some of which are authenticated by the applicant in his own hand, show that he requested retirement effective 1 February 1986.  The Board also noted that the applicant was issued retirement orders over ten months prior to his retirement and these orders showed that he was to be separated from active duty effective 31 January 1986 and placed on the Retired List the next day which was 1 February 1986.  The applicant’s DD Form 214, which he signed, shows that he was separated from active duty on 31 January 1986.  Finally, the Board noted that the applicant requested terminal leave from 25 November 1985 through 31 January 1986.  

3.  Based on evidence of record, the Board concluded that the applicant requested retirement effective 1 February 1986 which resulted in separation from active duty on 31 January 1986.  Documents in the applicant’s service personnel records show that the applicant had exactly 20 years of Federal service on the date of his separation from active duty (31 January 1986) and that he was aware of this fact.

4.  Records show the applicant served exactly 20 years of active Federal service and that he did not complete any additional active Federal service or other qualifying service.  Therefore, the applicant is not entitled to correction of his records to show any additional qualifying service for retirement or retired pay purposes.

5.  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.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__TFB__  ___JTM__  __WTM__  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000047182	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010403	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY	MR CHUN	
ISSUES         1.	128.0000.0000	
2.		
3.		
4.		
5.		
6.