IN THE CASE OF: BOARD DATE: 29 September 2020 DOCKET NUMBER: AR20200002014 APPLICANT REQUESTS: Correction of his retirement orders to show he was paid in the rank/grade of captain with 4 years enlisted service (CPT)/ O-3E. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Orders Number 308-27 * DA Form 5016 (Chronological Statement of Retirement Points) * Leave and Earnings Statements (LES) * Email correspondence FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code 9USC), section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states retirement Orders Number 308-17 shows "completed over 4 years of active service as enlisted or warrant officer; not applicable." This is incorrect because he is an O-3E with at least 4 years and 1 day of active duty or more than 1,466 points as an enlisted member. He has been underpaid every month since 9 December 2013, more than 72 months by at least $424.00 if not more, which causes undue financial hardship without correction. 3. A review of the applicant's official records shows the following: a. The applicant's records contain a DA Form 5016 showing the following: * 16 October 1980 – 7 October 1983; enlisted Regular Army * 21 August 1984 – 15 October 1986, enlisted U.S. Army Reserve (USAR) * 28 November 1989 – 27 November 1993 enlisted Army National Guard (ARNG) b. On 13 February 1994, the applicant was appointed as a Reserve commissioned officer and executed an oath of office. c. On 26 March 2002, by memorandum, the applicant was promoted to the rank of CPT, effective on 12 November 2001. d. On 21 January 2008, the U.S. Army Human Resources Command, St. Louis, MO, issued the applicant a Notification of Eligibility for Retired Pay notifying him he had completed the required years of qualifying Reserve service to be eligible for retired pay at age 60. e. On 22 September 2013, a PEB convened, and the PEB found the applicant physically unfit and recommended a rating of 90 percent and his disposition be permanent disability retirement. f. The applicant's records are void of his separation orders which would show his retired rank and enlisted status. 4. The applicant provides: a. Orders Number 308-27, issued by the U.S. Army Physical Disability Agency (USAPDA), placed the applicant on the retired list in the rank of CPT. These orders indicate "completed over 4 years of active service as enlisted "not applicable." b. LES's showing the applicant as an O-3E with 22 and 23 years of service. c. Email correspondence with an Inspector General official pertaining to the correction of the applicant's retirement orders, and he was advised to petition the Board because his orders could not be amended based on the date the orders were published. 5. On 17 September 2020, the USAPDA reviewed the applicant's records and rendered an advisory opinion in his case. After a thorough review, a USAPDA official opined that: a. The memorandum was in response to the Board's 27 August 2020 request for an advisory opinion regarding the applicant's request to have his disability retirement orders corrected to reflect his rank as O-3E. For the reasons below, they find the request to be legally sufficient. b. Background: The USAPDA published a permanent disability retirement order authorizing the applicant's retirement with a rank of CPT without annotating his time as an enlisted service member. c. Analysis: The applicant provided documentation supporting of his enlisted time in service from 1980 to 1993 with the active duty, USAR, and the ARNG. The orders published by USAPDA did not have his enlisted service time included. d. Conclusion: The applicant's documentation shows clear evidence of his rank history and establishes the basis for a correction to his disability retirement order. Due to the above, they find the applicant's request is legally sufficient. Recommend USAPDA publish amended orders to reflect the retired rank of 0-3E. 6. On 17 September 2020, the applicant responded to the advisory opinion concurring with the recommendation. 7. See applicable references below. BOARD DISCUSSION: The Board agreed that an error occurred and the applicant’s 4 years of enlisted service was not recorded on his retirement orders. The USAPDA affirmed that the applicant’s enlisted time in service was omitted when they published his retirement orders. Therefore, the Board found sufficient evidence to grant relief and amend his orders. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :XX :XX :XX GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of Army records of the individual concerned be corrected by: 1. amending retirement order #308-27, dated 4 November 2013 by the USAPDA to show: • the applicant’s grade of rank as O-3E, and • he completed over 4 years of active service as Enl or WO: Yes 2. paying him all pay due as a result of that correction. 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. REFERENCES: 1. Title 10, USC: a. Section 1201 states upon a determination by the Secretary concerned that a member is unfit to perform the duties of the member’s office, grade, rank, or rating because of physical disability incurred while entitled to basic pay, the Secretary may retire the member, with retired pay computed under section 1401 of this title. b. Section 1552 states the Secretary of a military department may correct any military record of the Secretary’s department when the Secretary considers it necessary to correct an error or remove an injustice. c. 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 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. 2. Department of Defense Financial Management Regulation states effective 1 October 1993, commissioned officers in pay grades O-1, O-2, or O-3 who are credited with over 4 years (i.e., at least 4 years and 1 day) of combined prior active service as an enlisted member are entitled to the special rate of basic pay for pay grade O-1E, O-2E, or O-3E. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200002014 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1