Ref: Signature Date 

From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy 

Ref: (a) Title 10 U.S.C. §1552 
     (b) Title 10 U.S.C. § 1407a 
     (c) Title 37 U.S.C. §203 (a)(2) 
     (d) Title 37 U.S.C. §3702 (a)(l)(A) and (b)(l)(2019) 
Encl:(1) DD Form 149 
     (2) History of Assigrunents 
     (3) DFAS ltr dtd 15 Apr 20 


1. Pursuant to the provisions of reference (a) Subject, hereinafter referred to as Petitioner, filed enclosure (1) with this Board requesting, in effect, that the applicable naval record be corrected to reflect timely submission of claim for underpayment ofretired pay. 

2. The Board, reviewed Petitioner's allegations of error and injustice on 28 May 2020 and, pursuant to its regulations, determined that the corrective action indicated below should be taken on the available evidence of record. Documentary material considered by the Board consisted of enclosures, relevant portions of Petitioner's naval records, and applicable statutes, regulations and policies. 

3. The Board, having reviewed all the facts ofrecord pertaining to Petitioner's allegations of error and injustice, finds as follows: 

a. Before applying to this Board, Petitioner exhausted all administrative remedies available under existing law and regulations within the Department of the Navy. 

b. In accordance with reference (b), Flag Officers who retired between l October 2006, and 31 December 2014, are allowed to use the higher "uncapped" rate of active pay vice the lower "capped" rate as their retired pay base (for computing retired pay). Meaning, during those years, although the officers serving in those special positions had the special position rate capped by reference (c) while on active duty, the special position rate from the pay chart could nevertheless be used to compute the retired pay base for retired pay that would be received after the active service ended. 

c. Petitioner transferred to the Retired List effective I December 2009. See enclosure (2). 

d. On 15 April 2020, Defense Finance and Accounting Service (DFAS) notified Petitioner of being underpaid retirement pay since his transfer to the Retired List on l December 2009. See enclosure (3) 

CONCLUSION 

Upon review and consideration of all the evidence ofrecord, the Board members find the existence of error and injustice warranting favorable corrective action. In this regard, the Board determined Petitioner's retirement pay should have been calculated using the 2009 active duty table for the higher rate of pay for the special command position in accordance with reference (b). However, upon retiring DFAS incorrectly computed Petitioner's retirement pay based on the limit on the amount of active duty pay a Flag Officer could receive in accordance with reference ( c ). Although OF AS discovered that Petitioner's retired pay was being calculated incorrectly, reference (d), restricts the agency from taking corrective action for periods prior to 
14 June 2013. The Board felt that under these circumstances, a measure ofrelief is warranted. 

RECOMMENDATION 

That Petitioner's naval record be corrected, where appropriate, to show that: 

Petitioner made a timely submission of claim for underpayment of retired pay from date of retirement on 1 December 2009. Note: DFAS will complete an audit of Petitioner's pay records to determine Petitioner's retroactive pay. 

4. Pursuant to Section 6(c) of the revised Procedures of the Board for Correction of Naval Records (32 Code of Federal Regulations, Section 723.6(c)) it is certified that a quorum was present at the Board's review and deliberations, and that the foregoing is a true and complete record of the Board's proceedings in the above-entitled matter. 

5. The foregoing action of the Board is submitted for your review and action.