ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF:   BOARD DATE:   17 August 2020DOCKET NUMBER:  AR20180007648 


APPLICANT REQUESTS: in effect, 

.Correction of his record to show his U.S. Army Physical Disability Agency(USAPDA) retirement order was amended to show his retirement rank/grade asmaster sergeant (MSG)/E-8, in lieu of, first lieutenant (1LT)/O-2

.Backpay due to change of retirement rank



APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

.DD Form 149 (Application for Correction of Military Record)

.Self-authored letter to the Chief, National Guard Bureau (NGB)

.Orders Number 62-49, dated 5 April 1989

.Memo, Subject: Appointment as a Reserve Commissioned Officer of the Army,dated 13 May 1989

.DA Form 4187 (Personnel Action), dated 22 March 1993

.DA Form 368 (Request for Discharge or Clearance from Reserve Component),dated 22 March 1993

.Orders Number 67AR, effective 27 April 1993

.Orders Number 114-058, dated 21 June 1993

.Orders Number D 187-01, dated 6 July 2017

.Orders Number D 249-26, dated 6 September 2017

.Memorandum, Subject: OpLaw, dated 7 September 2017

.Army Review Boards Agency (ARBA) letter, dated 29 May 2018



FACTS: 

1.The applicant states in pertinent part, he requests retirement Orders NumberD 249-26 be amended/changed from his retirement of 1LT to MSG.  The reason for thisrequest is that the Defense and Finance Accounting Service (DFAS) has completed hisapplication for retired pay in November 2017 and has notified him by certified mail thatthe computation for retired pay by them shows that he is entitled to more retirementmoney as a MSG than as a 1LT which is contrary to what he was told before thedetermination was made.  He has started to receive retired pay as processed with thecurrent retirement order as a 1LT but is entitled to more in monthly retirement pay as a
MSG but DFAS has to have an amended order to process.  The determination made by DFAS concludes that he is at a disadvantage losing over $200.00 per month in retirement pay.  He received a telephone call from the USAPDA in January after making this request but has not received a response any further.   

2.A review of the applicant's official records shows the following:

a.The applicant's records are void of a DA Form 71 (Oath of Office MilitaryPersonnel) which would indicate he was appointed as a Reserve commissioned officer and executed an oath of office.  However, it contains the following documents as it pertains to him being appointed as a commissioned officer: 

(1)Memorandum, Subject: Notification of Promotion Status, dated 7 May 1998,wherein the applicant was informed a Department of the Army Reserve Components selection board had convened to consider officers of his grade for promotion.  Unfortunately, he was considered and not selected for promotion by the board.  As a result of the second non-selection, he must be discharged in accordance with Title 10, United States Code, section 14513. 

(2)Army National Guard (ARNG) current annual statement showing the highestrank held by the applicant was 1LT. 

b.On 28 April 1993, the applicant enlisted in the Regular Army and served throughmultiple reenlistments. 

c.On 12 May 2002, the applicant was honorably discharged from active duty as aStaff Sergeant (SSG)/ E-6. 

d.On 12 September 2002, the applicant enlisted in the ARNG in the pay grade E-6.

e.On 2 June 2017, a formal Physical Evaluation Board (PEB) convened and thePEB found the applicant physically unfit and recommended a rating of 20 percent and his disposition be permanent disability retirement. 

f.On 6 July 2017, Orders Number D 187-01, issued by the USAPDA, released theapplicant from assignment and retired him in the rank of MSG. 

g.On 9 August 2017, the applicant was honorably retired from the ARNG by reasonof permanent disability. 

h.On 6 September 2017, Orders Number D 249-26, issued by the USAPDA,amended Orders Number D 187-01 insomuch as changing the applicant's retired rank from MSG to 1LT. 


3.The applicant provides:

a.Self-authored letter to the Chief, NGB that states in pertinent part:

(1)The reason for this request was that DFAS had completed his application forretired pay in November 2017 after receiving the order and had notified him by certified mail that the computation for retired pay by them shows that he was entitled to more retirement compensation as a MSG with his time in service/time in grade than as a 1LT which was contrary to what he was told before the determination was made.  He had started to receive retired pay as processed with the current retirement order as a 1LT but was entitled to more in monthly retirement pay as a MSG but DFAS had to have an amended order to process and correct his pay.  The determination made by the DFAS analyst concluded that he was at a disadvantage losing more than $200.00 per month in retirement pay creating a back pay situation that continues to accumulate.  Enclosed you will find copies of both retirement orders and copy of notice from your office which states he must seek relief through the Adjutant General of his State or the Chief, NGB, he has reached out to both, the State cannot amend an order issued by the USAPDA.  He has spoken with the retirement services section at Chief, NGB and was told they are not authorized to do so either only the Board can issue/amend the order. 

(2)In summation the determination made by the DFAS analyst concluded that
he was at a disadvantage losing close to $300.00 per month in retirement pay creating a back pay situation that continues to accumulate and is creating a hardship situation for him and his family. 

b.Orders Number 62-49, dated 5 April 1989, which assigned the applicant to the USArmy Reserve Control Group (Annual Training) since he was a member of the Reserve Officer Training Corps (ROTC) Early Commissioning Program awaiting a unit vacancy, effective 13 May 1989. 

c.Memo, Subject: Appointment as a Reserve Commissioned Officer of the Army,


dated 13 May 1989 which appointed him as a Reserve Commissioned Officer of the US Army in the grade of 2nd Lieutenant (2LT)/ O-1. 

d.DA Form 4187 (Personnel Action), dated 22 March 1993, in which he requests


enlistment in the Regular Army. 

e.DA Form 368 (Request for Discharge or Clearance from Reserve Component),dated 22 March 1993, in which his clearance for enlistment was granted and he was recommended for enlistment.  He enlisted on 28 April 1993 in the Regular Army in the rank of E-4. 










































f.Orders Number 67AR, published by the Army and the Air Force, National GuardBureau, announced his federal recognition as a First Lieutenant (1LT)/O-2, effective 27 April 1993 and transfer to the US Army Reserve (USAR). g.Orders Number 114-058, published by the State of Mississippi MilitaryDepartment The Adjutant General’s Office, dated 21 June 1993, separated him from the Army National Guard effective 27 April 1993 and transferred him to the USAR Control Group (Reinforcement). h.Orders Number D 187-01, dated 6 July 2017, referenced in his service record in2f above. i.Orders Number D 249-26, dated 6 September 2017, referenced in his servicerecord in 2h above. j.Memorandum, Subject: OpLaw, dated 7 September 2017 that states theUSAPDA determined the highest rank in which the applicant satisfactorily served for the purpose of computation of retirement/separation pay was 1LT.  The authority was     Title 10, United States Code (USC), section 1372.    k.ARBA letter, dated 29 May 2018, which informed the applicant he must first seekrelief through the State Adjutant General of the Chief, NGB before seeking relief through the Board.  If he was subsequently denied, he could then apply to the Board.  l.Email, dated 22 July 2020 in which the applicant was asked to provide a copy ofthe letter he mentioned in his application from DFAS citing the computation for retired pay by them shows that he is entitled to more money as a MSG than as a 1LT.  The applicant stated there was no letter, but it was verbally told him in November 2017 by Ms. F___ from DFAS.  He recently contacted DFAS Retired Pay, and was told they cannot send him a letter directly, and that he had to make a written request to their processing center and they would send it to the entity that needs it. 4.See applicable references below.BOARD DISCUSSION: The Board carefully considered the applicant’s request, supporting documents, and evidence in the record and found sufficient evidence to grant relief.  The Board found that the applicant faced an injustice when he was medically retired as a 1LT/O-2 instead of as a MSG/E-8, since his retired pay as a 1LT/O-2 is significantly less than what he would receive as a MSG/E-8.  While Title 10, USC, section 1372 (effective 4 January 1995), states that service members retired for physical disability are entitled to the highest grade in which they served honorably, the Board finds that in this case, to correct the injustice, and for over 30 years of combined service to the nation, the applicant’s records should be corrected to reflect the grade at which the applicant served when he was retired on orders D-187-01, dated 6 July 2017, before they were amended. 


BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

:XX:XX:XXGRANT 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.revoking orders D 249-26, dated 6 July2.retiring him at the rank/grade of  MSG/3.paying him all back pay and allowances


X 

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, section 1372 (effective 4 January 1995), states unless entitled to ahigher retired grade under some other provision of law, any member of an Armed Forcewho is retired for physical disability under section 1201 or 1204 of this title, is entitled tothe grade equivalent to the highest of the temporary grade or rank in which he or sheserved satisfactorily, as determined by the Secretary of the Armed Force from which heor she is retired.

2.Title 10, USC, section 1552, states The Secretary of a military department maycorrect any military record of the Secretary’s department when the Secretary considersit necessary to correct an error or remove an injustice.

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