BOARD DATE: 28 September 2017 DOCKET NUMBER: AR20160002217 BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x____ ____x____ ___x_____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 28 September 2017 DOCKET NUMBER: AR20160002217 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _______________x___________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. BOARD DATE: 28 September 2017 DOCKET NUMBER: AR20160002217 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests correction to his military records to show he was credited with 25 years of service toward his retired pay. 2. The applicant states the retirement counselor never showed or explained anything to him. The counselor was upset with him because he submitted a complaint on one of his personnel because she appeared to be violating his privacy. The employee had a civilian friend in her office who listened to his personal information such as social security number, birth date, etc. He did not believe it was right to have a civilian overhearing his personal information, so he got up and left. He states his retired pay is incorrect. 3. The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 31 March 2011 and a DA Form 1506 (Statement of Service – For Computation of Length of Service for Pay Purposes) dated 22 December 2010. CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code (USC), 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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant enlisted in the Regular Army on 19 November 1981 and served on active duty through 19 November 1993, a period of 12 years and 1 day. He was issued a DD Form 214 for this period of service showing his years of active service, his service in the delayed entry program, and his transfer to the U.S. Army Reserve (USAR) Control Group (Reinforcement). Upon his discharge, he had no remaining statutory service obligation. 3. On 28 March 1995, he enlisted in the Florida Army National Guard (FLARNG). He was discharged from the ARNG on 27 March 1996 and received an NGB Form 22 (National Guard Bureau – Report of Separation and Record of Service) showing he served 1 year in an inactive status. 4. He then had a break in service from 28 March 1996 to 30 October 2000, a period of 4 years, 7 months, and 3 days. 5. On 31 October 2000 the applicant enlisted in the FLARNG. After his enlistment he served two periods of active federal service. He was issued a DD Form 214 for the following periods: * from 13 November 2001 through 20 September 2002, a period of 10 months and 8 days in support of Operation Enduring Freedom * from 30 January 2003 through 9 December 2005, a period of 2 years, 10 months, and 10 days in support of Operations Noble Eagle and Enduring Freedom 6. On 8 May 2006 the applicant was discharged from the ARNG and received an NGB Form 22 showing he served for 5 years, 6 month and 8 days in the FLARNG from 31 October 2000 to 8 May 2006. 7. The applicant enlisted in the USAR on 25 September 2006, serving initially in an inactive status. On 15 December 2006 he entered active duty and was released from active duty on 13 December 2010. His DD Form 214 for this period shows he was credited with completing 3 years, 11 months, and 29 days. He was ordered to active duty in support of Operation Iraqi Freedom and served in Kuwait. At this point, he had cumulatively served more than 18 years active federal service. 8. As he was eligible for the 18-year statuary lock-in, he was immediately ordered to active duty on 14 December 2010. 9. Orders 040-0034, issued by Headquarters, 3rd Infantry Division and Fort Stewart, Fort Stewart, Georgia, on 9 February 2011, ordered his retirement effective 31 March 2011 with placement in the Retired List on 1 April 2011. These orders show he was credited with: * 20 years, 00 months, and 5 days of active service toward voluntary retirement * 25 years, 00 months, and 4 days of service for basic pay purposes * 20 years, 8 months, and 16 days of [Title 10, USC] Section 1405 (Years of Service) service 10. On 31 March 2011 the applicant retired due to sufficient length of service in the rank and grade of sergeant first class/E-7. His DD Form 214 shows he was credited in: * Item 12c (Record of Service – Net Active Service This Period) with completing 3 months and 17 days of active service * Item 12d (Record of Service – Total Prior Active Service) with completing 19 years, 8 months, and 18 days of prior active service * Item 12e (Record of Service – Total Prior Inactive Service) with completing 4 years, 11 months and 29 days of inactive service 11. The applicant provides a DA Form 1506, dated 22 December 2010, showing his total creditable service for pay as 24 years, 8 months, and 17 days. However, this DA Form 1506 does not account for his active service between 14 December 2010 and 31 March 2011 (a period of 3 months and 17 days). 12. In the processing of this case, an advisory opinion was obtained from the Branch Chief, Human Resource Service Center, U.S. Army Human Resources Command (HRC), Fort Knox, KY. a. The advisory official recalculated the applicant's computation for length of service and verified his total service for basic pay. b. The advisory official states the applicant was correctly credited with: * 20 years, 00 months, and 5 days of qualifying years of active duty service * 25 years, 00 months, and 4 days of total service for basic pay purposes * 20 years, 8 months, and 16 days of qualifying years of service for [Title 10, USC] Section 1405 service c. The advisory official provides an undated (though authenticated) revised DA Form 1506, showing the applicant's total creditable service as 25 years, 00 months, and 4 days which includes his 3 months and 17 days of active service not shown on his 2010 DA Form 1506. 13. A copy of the advisory opinion was forwarded to the applicant on 12 May 2017, for information and to allow him the opportunity to submit comments or a rebuttal. He did not respond. REFERENCES: 1. Title 10, USC, section 1405, provides that for the purposes of the computation of a service member's years of service, under a provision of Title 10 providing for such computation to be made, the years of service of the member are computed by adding: a. his or her years of active service; b. the years of service, not included in clause (1), with which he or she was entitled to be credited on 31 May 1958, in computing his or her basic pay; and c. the years of service, not included in clause (1) or (2), with which he or she would be entitled to be credited under Title 10, USC, section 12733 if he or she were entitled to retired pay under Title 10 USC 12731. 2. Service computed under Title 10 USC 1405 includes all active service plus inactive duty service credit permitted under Title 10 USC 1405. This data is used as the basis for the retired pay multiplier. Service under Title 10 USC 1405 includes Inactive Duty Training (IDT) points creditable toward retired pay and membership points a Reserve component member earned prior to being ordered to continuous active duty service. IDT and membership points may only be added to the service member's final active service total once the retiree has attained 20 years of active service. 3. Title 10 USC 3991 (Computation of Retired Pay) provides that the monthly retired pay of a service member entitled to such pay under this subtitle is computed by multiplying the member’s retired pay base by the retired pay multiplier prescribed in section 1409 of this title, for the number of years credited to the member under section 1405 of this title. 4. There are two methods for determining the retired pay base; they are the final pay method and the High-36 month average method. The final pay method, as the name implies, establishes the retired pay base equal to final basic pay. a. The High-36 method, used for Solider who's Date of Initial Entry to Military Service (DIEMS) occurred on or after 8 September 1980, involves calculating the sum of the highest 36 months of basic pay and dividing by 36 to get the High-36 average. b. Under the High-36 retired pay plan, each year of service is worth 2.5 percent (%) toward the retirement multiplier. For instance, 20 years of active service equates to a 50% multiplier, and 25 years of active service equates to a 62.5% multiplier. To determine the amount of retired pay a member receives, the member’s retired pay base (average of highest 36 months) is multiplied by the percentage multiplier. DISCUSSION: 1. The applicant requests correction of his military records to show he was credited with 25 years of service towards his retired pay. The applicant contends his retired pay should be based on 25 years of service. 2. The applicant entered military service after 8 September 1980; therefore, his retired pay is computed using the High-36 method. 3. The applicant performed multiple periods of active duty service totaling 20 years, 00 months, and 5 days. His retirement orders show he was credited him with 20 years, 8 months, and 16 days of qualifying years of service for Section 1405 service, and 25 years and 4 days of total creditable service for pay purposes (determining active duty pay). These figures were confirmed by HRC. 4. The applicant's retired pay is calculated by multiplying his retirement multiplier (50%), which is the total number of years of credited 1405 Service (20 years multiplied by 2.5%) by his high-36 (month) average. In accordance with the various laws governing the calculation of retired pay, the applicant's total creditable service (active and inactive) for pay purposes is not used in the computation of his retired pay. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002217 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002217 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2