IN THE CASE OF: BOARD DATE: 16 February 2022 DOCKET NUMBER: AR20210012654 APPLICANT REQUESTS: * adjustment of his Date of Initial Entry into Military Service (DIEMS) to reflect 1 July 1980 * recalculation of his retirement pay utilizing the "final pay" method * retroactive entitlement to back payment of allowances from 31 May 2014 * personal appearance APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-authored letter, dated 14 December 2020 * Letter, Department of the Army U.S. Military Academy, dated 14 December 2020 * Orders Number 231-0300, dated 19 August 2013 * DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 31 May 2014 * College transcript * Identification card * Leave and Earnings Statement (LES), dated 31 May 2014 * Retirement Pay Base information * Email communication * DA Form 71 (Oath of Office Military Personnel), dated 23 May 1984 * USMA Form 5-50 (Oath of Allegiance) FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code (USC), 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 in pertinent part that during his retirement processing, the Fort Bragg, NC Retirement Service incorrectly annotated his DIEMS date as 23 May 1984, consistent with his graduation date from West Point. They also utilized the "High-3" method to calculate his retirement pay. He contests that, in accordance with Army policy, his DIEMS date should be 1 July 1980 (the date that he entered West Point) and his retirement pay should be calculated utilizing the "Final pay" method. 2. A review of the applicant's available personnel records reflects the following: a. On 23 May 1984, the applicant was appointed a Regular Army commission as a Field Artillery Officer. b. On 5 August 2013, DA Form 7301-R (Officer Service Computation for Retirement) was constructed. Section 9 (Commissioned Officer) indicates that the applicant was commissioned on 23 May 1984 and at the time of retirement, he had completed 30 years 8 days of total active service; "0" days of total inactive service; 23 May 1984 Basic Pay Entry Date; 30 years 8 days of total service for Basic Pay purposes. c. On 19 August 2013, U.S. Army Installation Management Command issued Orders Number 231-0300 retiring the applicant from active-duty effective 31 May 2014 at the rank/grade of colonel (COL)/O-6. d. On 31 May 2014, the applicant was honorably retired from the Regular Army. DD Form 214, section 12 (Record of Service) 12c. (Net Active Service this Period) reflects 30 years and 8 days; 12d. (Total Prior Active Service) and 12e. (Total Prior Inactive Service) reflects "0". 4. The applicant provides the following a: a. Self-authored letter, dated 14 December 2020, reflective of the applicant's submitted request to the Defense Finance Accounting Service (DFAS) to have an audit conducted of his retirement pay. Upon completion, the applicant requested to have his retirement pay corrected based on the adjusted DIEMS date and calculations based on the "Final Pay" method. b. Letter, Department of the Army U.S. Military Academy, dated 14 December 2020, reflective of the Associate Dean for Academic Affairs and Registrar Services verification of the applicant's attendance at West Point from 1 July 1980 – 23 May 1984. c. College transcript, reflective of the applicant's academic curriculum, while attending West Point from 1 July 1980 through his graduation in 1984. d. Identification card, reflective of the applicant's issued retiree ID card. e. LES, dated 31 May 2014, reflective of the applicant's final base pay amount of $10,688.56, retirement plan of the "High 3," and his DIEMS date as 23 May 1984. f. Retirement Pay Base information reflective of information pertaining to establishing the DIEMS for service academy graduates who entered the academy without prior service; date is based on the date that they entered the academy rather than their date of graduation. However, DIEMS does not determine when creditable service toward retirement is calculated – it only determines which retired pay base method applies. g. Email communication reflective of DFAS responding to the applicant's inquiry concerning the correction of his DIEMS wherein he was advised that the correction needed to be made by the Human Resources Community i.e. U.S. Army Human Resources Command (HRC). h. USMA Form 5-50 (Oath of Allegiance) reflective of the applicant's contractual obligation as a cadet at West Point. 5. On 7 December 2021, HRC, Chief, Army Service Center opined that the applicant needed to contact the Retirement Services Office at Fort Bragg, NC (who issued his retirement orders) for them to further research his DIEMS date and the calculations on his retirement orders. 6. On 17 December 2021, the applicant was provided with a copy of the advisory opinion and afforded 15 days to provide comments. In response, the applicant provided additional email communication from Fort Bragg, NC, Acting Chief, Personnel Processing Branch wherein he advises the applicant to include in his response to this Board, copies of his transcripts and if the Board determines that his records should be corrected, the disposition of the findings will instruct all necessary agencies to correct his records accordingly which will include recalculating his retirement pay and issuing all back pay accordingly. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. Upon review of the applicant’s petition, available military record and the memorandum from HQDA G-1 Retirement Services Office – Program Manager, the Board concurred with the advising official finding the applicant’s DIEMS should be corrected. Based on the evidence in the record, the applicant entered on 1 July 1980 and served continuously as a cadet until his graduation and commissioning on 23 May 1984. Based on this the Board granted relief to adjustment of his Date of Initial Entry into Military Service (DIEMS) to reflect 1 July 1980 with recalculation of his retirement pay utilizing the "final pay" method and retroactive entitlement to back payment of allowances from 31 May 2014. 2. The applicant’s request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X X X 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 the Army records of the individual concerned be corrected by adjustment of his Date of Initial Entry into Military Service (DIEMS) to reflect 1 July 1980 with recalculation of his retirement pay utilizing the "final pay" method and retroactive entitlement to back payment of allowances from 31 May 2014. 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. EFERENCES: 1. Title 10, 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 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. Military Personnel Message Number 03-102, dated 26 February 2003, subject: DIEMS Date Accuracy, announced a Human Resources Command initiative to conduct an Army accuracy scrub to validate DIEMS dates. DIEMS was defined as the date an individual was initially enlisted, inducted, or appointed in a Regular or Reserve Component of a Uniformed Service as a commissioned officer, warrant officer, or enlisted member. It further indicated that "breaks in service would not affect the date someone first became a member." It further indicated that the DIEMS of members of the Delayed Entry Program (DEP) would be the date the enlistment contract was signed regardless of when the Soldier entered active duty. Members who first entered uniformed or military service through the DEP, the United State Military Academy, an advanced Reserve Officers' Training Corps program, or a Reserve Federally recognized National Guard component will have a DIEMS that matches the date they entered those programs. There are no provisions for assigning a DIEMS date based on constructive service credit. 3. Department of Defense Financial Management Regulation 7000.14-R, Volume 7B (Retired Pay), chapter 1 (Initial Entitlements - Retirements), governs retired pay. a. Paragraph 0101 (Service Creditable for Retirement Purposes), subparagraph 010101 (General), in pertinent part, states a member who continues on active duty after completion of 20 years of service may be retired for voluntary or involuntary reasons. b. Paragraph 010202 (Retired Pay Base) states The DIEMS determines whether the retired pay base is the monthly basic pay of the member just before retirement or an average of the highest 36 months of basic pay applicable during the member’s career. c. Paragraph 0301 (Basic Computation), subparagraph 030101A (Retired Pay Base), shows the retired pay base is determined using the active-duty basic pay entitlement of the member. (1) For individuals who first became members before 8 September 1980, the retired or retainer pay base is generally the basic pay of the member on the day before retirement. (2) For individuals who first became members after 7 September 1980, the retired or retainer pay base is generally the average of the highest 36 months of basic pay received. 4. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS//