MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           21 August 2001                   
	DOCKET NUMBER:   AR2001056295

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. James E. Vick		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. William D. Barr		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:  That his retired pay be based on his highest 36 months of basic pay as an officer.

APPLICANT STATES:  That information from the Defense Finance and Accounting Service – Cleveland Center (DFAS-CL) dated 7 January 1999 stated that his retired basic pay would be based on his highest 36 months of pay.  However, in April 2001 he received an Information Paper from his local retirement services officer (RSO) stating that his retired pay would be based on an average of his highest 36 months of basic enlisted pay only since he had less than 10 years of commissioned service.  He based his retirement, future, family, and financial plans on information provided by DFAS-CL.

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

He enlisted in the Regular Army on 9 July 1981.  He was discharged on            16 February 1995 to accept a commission and entered active duty as a second lieutenant on 17 February 1995.  

On 6 January 1999, the Schofield Barracks, HI RSO emailed DFAS-CL inquiring how the applicant’s pay would be calculated.  The RSO noted that the applicant would not have 10 years of commissioned service when he reached his planned retirement date.  On 7 January 1999, DFAS-CL responded by stating he would be retired at the highest enlisted grade satisfactorily held and his retired pay would be based on the average high 36 months service, not on grade held.  So, he would be paid using the last 36 months service (i. e., 0-2E and 0-3E).

Around September 2000, the applicant applied for voluntary retirement, which was approved with a retirement date of 1 August 2001.

In April 2001, the applicant was provided an Information Paper dated                   6 September 2000.  The paper explained how the date initially entered military service (DIEMS) date determines which of three retired pay formulas a soldier is eligible to use.  This Information Paper outlined that commissioned officers who were former enlisted members must serve 10 years in the commissioned grade to retire as a commissioned officer.  If they have less than 10 years commissioned service, they retire as enlisted members.  If they retire as enlisted members with more than 20 years but less than 30 years, only their enlisted basic pay is used in the computation of the average of their 36 months basic pay.

The Department of Defense Authorization Act of 1981 effected the first major change in retired pay computation since 1948.  The Department of Defense Financial Management Regulation (DODFMR), volume 7B implements this change by revising the method for computing retired pay for a member who enters a Uniformed Service after 7 September 1980.  Previously, retired or retainer pay was computed as a percentage of basic pay rate.  The new law provided for the computation of retired pay as a percentage of a member’s retired pay base.  The retired pay base is the average of the monthly basic pay rates a member receives or is entitled to for a period of 36 months, whether or not consecutive.  This is commonly referred to as “high 36 months” or “high 3 average.”  

Title 10, U. S. Code, section 1407(e) states that in the case of a enlisted member who is retired with at least 20 but less than 30 years of service, the member’s high 36 average shall be computed using only rates of basic pay applicable to months of active duty of the member as an enlisted member.  

Title 10, U. S. Code, section 3911 states that the Secretary of the Army may, upon the officer’s request, retire a regular or reserve commissioned officer of the Army who has at least 20 years of service, at least 10 years of which have been active service as a commissioned officer.   

Title 10, U. S. Code, section 3914 states that an enlisted member of the Army who has at least 20 but less than 30 years of service may, upon his request, be retired.

On 26 July 2001, an analyst with the Board asked the DFAS-CL point of contact how he happened to write his email dated 7 January 1999.  He stated that the DODFMR is not clear on how to compute the retired pay of commissioned officers who retire with less than 10 years of commissioned service.  It was not until about a year and a half ago that they sat down and “dug” into Title 10 and determined that the law meant that such members, who retired as enlisted members with less than 30 years of service, would have their high 36 average computed using only rates of basic pay applicable to months of active duty of the member as an enlisted member.  

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.  Although the current retired pay computation law was passed in 1981, the first actual computations effective under that law for retirements 20 years later were not made until around 2000. Unfortunately, the DODFMR guidance concerning the new computations is not very clear.  It appears that clarification was not obtained until about a year and a half ago (about the time the 6 September 2000 Information Paper was prepared).  Unfortunately, the applicant did not receive this Information Paper until more than six months after his retirement was approved.  

2.  The calculation of the applicant’s retired pay is statutorily defined and the Board cannot change the application of the law.

3.  Regrettably, 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

__jev___  __bje___  __wdb___  DENY APPLICATION

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

INDEX

CASE ID	AR2001056295	
SUFFIX		
RECON		
DATE BOARDED	20010821	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	128.14	
2.		
3.		
4.		
5.		
6.