IN THE CASE OF: BOARD DATE: 27 February 2020 DOCKET NUMBER: AR20180009311 APPLICANT REQUESTS: correction of his retirement pay under the Career Status Bonus (CSB). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self Authored letter * Pay Calculation * Defense Finance and Accounting Service letter dated 7 June 2018 * Pay Bill document * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Basic Pay Scale * Leave and Earnings Statements FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code, section 1552(b); however, the 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 that the documentation currently reflected by Defense Finance and Accounting Services (DFAS) is incorrect. His retirement pay is currently being calculated as an E-4 over 20 as of August 2008, approximately $2,135.10. He contests that the calculations being utilized are incorrect. On 4 September 2007, he was reduced from Staff Sergeant (SSG)/E-6 to Specialist (SPC)/E-4. He was advised by DFAS that since he previously accepted the CSB, he was only entitled to 40% of his base pay for retirement. This should have been calculated based upon his pay and entitlements from August 2004 and August 2007, approximately $2963.08. Based upon his calculations, this has resulted in an underpayment of over $30,000. 3. A review of the applicant’s available service records reflects the following: a. On 25 April 1988 he enlisted in the United States Army Reserve. b. On 30 August 1988 he was ordered to active duty. c. On 1 February 2002 he was promoted to Staff Sergeant. d. (General Court Martial Order# 12) He was court martialed for violation of Article 121 (Larceny and Wrongful Appropriation) and Article 134 (General Article). His sentence was adjudged on 4 September 2007 resulting in a fine of $4000.00, reduction to SPC and 30 days confinement. e. On 16 November 2007 (Order 320-0006) he was ordered to be released from active duty at the rank of SPC effective 30 September 2008. f. On 30 September 2008 he was released from active duty for retirement at the rank of SPC and placed on the retired list effective 1 October 2008. 4. The applicant provides the following: a. A Pay Calculation chart reflective of his estimated gross salary starting in September 2004 ($2790.90/ 16 years of service) and ending in August 2007 ($3133.50/ 19 years of service) totaling an average pay calculation of $2963.08 for 36 months (40%= $1185.23) b. A Defense Finance and Accounting Service letter dated 7 June 2018 reflective of their response to his inquiry concerning his retirement pay and entitlements. Since the applicant entered the military after 7 September 1980, his retirement pay calculations are based upon his Highest 36 months of active duty pay (known as High 36 or High 3). Based upon their calculations his High 36 base amount is $2135.10. The applicant received the CSB therefore he is entitled to 40% of this amount ($2135.10). Public Law 99-348 created the Military Retirement Reform Act (MRRA) of 1986, also known as Redux. This act changed the manner in which retired pay would be computed for members who enter the Armed Forces on or after August 1, 1986. Under the MRRA, a member with 20 years of service would have the percentage multiplier reduced by 1 percent for each full year of service less than 30 years, so the 50 percent would now be 40 percent. The act further reduced the retiree's retired pay by reducing the cost of living increases applied to these accounts by 1 percent. c. A Pay Bill document reflective of the gradual salary increase since his retirement in 2008 to present (2017). Calculations were provided based upon the $2135.10 (High 36) salary amount. d. A DD Form 214 (Certificate of Release or Discharge from Active Duty) dated 30 August 2008 reflective of 20 years and 7 days of active federal service. e. A Basic Pay Scale covering the periods starting in April 2004 through January 2008. With regard to his last 36 months in the military, based upon the provided documents, his pay would have ranged from $2888.70 (August 2005/ SSG over 16 years) to $$3043.50 (August 2007/SSG over 18 years), then from September 2007 until his retirement in August of 2008 his salary, as a Specialist (over 18 years of service) would have ranged from $2062.80 to $2135.10. f. Leave and Earnings Statements from June 2005 through October 2005 and September 2006 through November 2006. These documents reflect his salary as a SSG during this period wherein his base pay ranges from $2888.70 (June 2005) to $2998.50 (November 2006) 5. See all applicable regulatory guidance below under REFERENCES. BOARD DISCUSSION: 1. After reviewing the application, the supporting documents, the facts above, and applicable laws and regulations, the Board found that relief is not warranted. 2. DOD 7000.14-R (Financial Management Regulation) states under “The Exception to High-36 Month Retired Pay Computation for Members Retired following a disciplinary Reduction in Grade: In the case of an enlisted member retired within 3 years after having been reduced in grade and who was not subsequently promoted to a higher enlisted grade (or appointed to a warrant or commissioned grade), the retired pay base will be computed using the final basic pay rather than the high 36-month average. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX :XXX :XX DENY APPLICATION 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. 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, United States Code, 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 Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. DOD 7000.14-R (Financial Management Regulation) states under “The Exception to High-36 Month Retired Pay Computation for Members Retired following a disciplinary Reduction in Grade: a. Members or former members who entered the Uniformed Services on or after September 8, 1980 will have their retired pay base computed using the high 36-month average, except for the members described as follows, whose retired pay base is based on the final basic pay of the grade prescribed in Title 10 U.S.C. 1406 (Retired pay base for members who first became members of the military prior to 8 September 1980) rather than the highest 36-month average of basic pay. b. In the case of an enlisted member retired within 3 years after having been reduced in grade and who was not subsequently promoted to a higher enlisted grade (or appointed to a warrant or commissioned grade), the retired pay base will be computed using the final basic pay rather than the high 36-month average. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180009311 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1