PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            1 May 2003 
	DOCKET NUMBER:   AR2003083281

	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. William Blakely		Analyst	

The following members, a quorum, were present:

	Mr. Thomas B. Redfern		Chairperson	
	Ms. Linda D. Simmons		Member	
	Mr. John T. Meixell		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, that his retired pay record be corrected to show he was advanced to the rank and pay grade of captain/03 (CPT/0-3) on the Retired List on 9 May 1991, and that he be provided all back pay due as a result. 

3.  The applicant states, in effect, that in 1991, he was notified by officials of the US Army Reserve Personnel Center (ARPERSCOM) that he was advanced to CPT/0-3 on the Retired List, effective 9 May 1991.  He claims that he has been trying to get his retired pay corrected, but military pay officials from the Defense Finance and Accounting Service (DFAS) have informed him he must apply to this Board to receive the back retired pay.  In support of his application, he submits a separation document (DD Form 214), dated 6 July 1973, a 22 July 1991 letter from the Chief, Retirement Services, ARPERSCOM, and a copy of his retirement orders.

4.  The applicant’s military records show that he initially entered active duty on 
8 June 1961, and continuously served on active duty in an enlisted status for
5 years, 11 months and 9 days until 16 May 1967, at which time he was honorably released from active duty (REFRAD) for the purpose of accepting a commission.

5.  On 17 May 1967, he was commissioned a second lieutenant and entered active duty in a commissioned officer status.  On 17 May 1969, he was promoted to CPT/0-3, the highest commissioned officer grade he held while on active duty. On 6 July 1973, he was honorably REFRAD after completing a total of 6 years and 1 months of active military service in a commissioned officer status.  

6.  On 7 July 1973, the applicant reentered active duty in the Regular Army in an enlisted status as a staff sergeant/E-6.  On 23 February 1974, he was promoted to the rank and pay grade of sergeant first class/E-7 (SFC/E-7).  He continuously served on active duty in an enlisted status 30 September 1982, until at which time he was honorably REFRAD for the purpose of retirement.  At the time of his REFRAD, he had completed total of 21 years, 3 months, and 23 days of active military service, and he held the rank and pay grade of SFC/E-7.  On the following day, 1 October 1982, he was placed on the Retired List in the rank and pay grade of SFC/E-7. 

7.  The applicant’s Military Personnel Records Jackets (MPRJ) contains a letter from the Chief, Retirement Services, ARPERSCOM, dated 22 July 1991.  It confirms that the applicant was advanced to the rank and pay grade of CPT/0-3 on the Retired List, effective 9 May 1991.  A Data For Retired Pay (DA Form 3713) prepared at the time to confirm this action contains the entry CPT/0-3 in Item 8 (Highest Grade Attained) and Item 10 (Retired Pay).  Item 17 (Date Placed on the Retired List) confirms that he was advanced to this rank and pay grade on the Retired List on 9 May 1991.  
8.  In connection with the processing of this case, a member of the Board staff contacted a DFAS retired pay official who confirmed that the applicant’s retired pay record had never been updated based on the 9 May 1991 advancement action taken by ARPERSCOM.  This DFAS official also verified that the applicant was still receiving retired pay based on a pay grade of E-7.

9.  Title 10, United States Code, section 1370 (d) provides that in order to be eligible for voluntary retirement under any provision of this title in the grade of second lieutenant through major, a commissioned officer of the Army must have served on active duty in that grade for 6 months.  

10.  Title 10, United States Code, Section 3964, provides that a retired enlisted member or warrant officer of the Army who is retired with less than 30 years of active service is entitled, when his active service plus his service on the Retired List totals 30 years, to be advanced on the Retired List to the highest grade in which he served on active duty satisfactorily.  

CONCLUSIONS:

1.  The Board notes the applicant’s contention that he has been entitled to receive retired pay as a CPT/0-3 since his advancement to that rank and pay grade on the Retired List on 9 May 1991, and it finds this claim has merit. 

2.  By law, when their active service plus retired service equals 30 years, enlisted soldiers are entitled to be advanced on the Retired List to the highest grade in which they satisfactorily served on active duty.  The law further stipulates that service of more than 6 months is a qualifying period of satisfactory service for commissioned officers in the grades of 0-1 through 0-3. 

3.  The evidence of record confirms that the applicant was properly advanced on the Retired List to the rank and pay grade of CPT/0-3 on 9 May 1991, in accordance with the applicable law and regulation.  

4.  A properly constituted DA Form DA Form 3713, dated 8 July 1991, that was prepared by the Chief, Retirement Services, ARPERSCOM is on file.  This document confirms that the applicant was advanced to the rank and pay grade of CPT/0-3 on the Retired List, effective 9 May 1991.  This DA Form 3713 should have been provided to DFAS retired pay officials at the time in order for them to begin providing the applicant retired pay in that rank and pay grade.  However, the evidence clearly establishes that as a result of an administrative error, this retired pay document was never provided to DFAS retired pay officials, and the applicant’s retired pay was never adjusted based on the 9 May 1991 advancement action.  

5.  In view of the facts of this case, the Board concludes that it would serve the interest of justice and equity to correct the applicant’s retired pay record to show that he was entitled to receive retired pay as a CPT/0-3, effective 9 May 1991.  In addition, the Board also finds that it would be appropriate to provide the applicant all back retired pay due as a result of the properly authorized advancement action. 

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

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by showing that the individual concerned was advanced to the rank and pay grade of captain/0-3 on the Retired List, effective 9 May 1991; and by providing him all back retired pay due as a result.  

BOARD VOTE:  

___jm___  __lds____  ___tbr___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___Thomas B. Redfern____
		        CHAIRPERSON

INDEX

CASE ID	AR2003083821	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2003/05/01	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  224	112.0200	
2.  338	136.0000	
3.		
4.		
5.		
6.