IN THE CASE OF: BOARD DATE: 30 November 2022 DOCKET NUMBER: AR20210015699 APPLICANT REQUESTS: correction of his records to show he completed prior enlisted service before his commission with O1E, O2E, and O3E designations, and that he was reassigned as a "grey area" retiree. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * ACTS Online application in lieu of DD Form 149 (Application for Correction of Military Record), 18 October 2021 * DD Forms 214 (Certificate of Release or Discharge from Active Duty), 9 September 1994, 5 June 2007, and 11 September 2012 * U.S. Army Human Resources Command memorandum (AHRC), 14 November 2013 (Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter)) * DA Form 5016 (Chronological Statement of Retirement Points, 17 October 2021 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 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 effect, he served over 4 years of active duty as an enlisted Soldier before becoming an officer. His records should show he was an O1E, O2E, and retired as a Grey Area Retiree at O3E. 3. The applicant provided copies of: * A DD Form 214 from his prior enlisted service in the U.S. Marine Corps * A DD Form 214, 5 June 2007 from his active duty (AD) service in the Army, showing he was honorably discharged at grade/pay grade SSG/E-6. * A DD Form 214, 11 September 2012, showing he served 6 months of AD service and was deployed to Afghanistan before being released to control of the California Army National Guard (CAARNG). * A memorandum from AHRC, 14 November 2013, showing he was notified of eligibility for retired pay at age 60 (20-year Letter). * A DA Form 5016, 17 October 2021, showing the retirement points he earned in service qualified him for retired pay at age 60. 4. A review of the applicant's service record shows: a. He was born in August 1971. b. He served in the U.S. Marine Corps from 10 September 1990 to 9 September 1994. His DD Form 214 shows he completed 4 years of enlisted active service. He was transferred to the U.S. Marine Corps Reserve. He remained in this component from 10 September 1994 to 18 January 2002. c. He had a break in service from 19 January 2002 to 24 September 2002. d. On 25 September 2002, he enlisted in the USAR for a period of 3 years at grade/pay grade specialist/E-4. He served on active duty from 28 February to 27 June 2003, completing 4 months of active service. His DD Form 214 listed his 4 years of prior active service. e. On 6 June 2004, he entered active duty as a member of the Active/Guard Reserve for 3 years, and on 10 June 2004, he extended his USAR enlistment. f. On 5 June 2007, he was honorably discharged from active duty by reason of completion of required active service. His DD Form 214 shows he entered active duty on 24 April 1999 (an error later corrected by a DD Form 215(Correction to DD Form 214)). It also shows he completed 3 year, 10 months, and 4 days of active service (in error) during this period, with 4 years and 4 months of prior active service. g. He had a break in service from 6 June 2007 to 11 October 2007. h. On 12 October 2007, he enlisted in the CAARNG for a period of 6 years. He was promoted to staff sergeant/E-6 on 3 March 2008. On 15 August 2008, he was honorably discharged from the CAARNG to accept an appointment as a commissioned officer in the CAARNG. He was issued an NGB Form 22 (Report of Separation and Record of Service) that credited him with 10 months and 4 days of ARNG enlisted service. i. On 16 August 2008, orders issued by Joint Force Headquarters, CAARNG, appointed him a second lieutenant (2LT) in the Military Police Corps. Also on 16 August 2008, he completed an Oath of Office (NGB Form 337). j. On 31 March 2009, he was issued a DD Form 215 that corrected his DD Form 214 ending on 5 June 2007 as follows: * Block 12a, date of entry as 6 June 2004 vice 24 April 1999 * Block 12c, net service this period as 3 years vice 3 year, 10 months, and 4 days * Block 12e, prior inactive service to show 10 years, 1 month, and 17 days k. He then entered active duty from 4 April to 9 August 2010 and completed the Military Police Basic Officer Leadership Course. His DD Form 214 for this period shows in Blocks 4a (Grade, Rate or Rank) and Block 4b (Pay Grade) 2LT/O-1 and in Block 12i (Effective Date of Pay Grade) 2008-08-16. l. On 9 August 2010, he was promoted to first lieutenant (1LT) in the ARNG. m. On 8 November 2010, he was commissioned a Reserve Commissioned Officer. n. On 25 July 2011, he was honorably released from the CAARNG by order of the Adjutant General of the CAARNG and he was transferred to control of the USAR Control Group (Reinforcement). He was issued an NGB Form 22 that credited him with 2 years, 11 months, and 10 days of ARNG commissioned service. o. On 27 February 2012, he was ordered to active duty from the USAR for service in Afghanistan. He served in Afghanistan from 10 April to 27 August 2012. p. On 11 September 2012, he was honorably released from active duty and transferred to control of 426th Civil Affairs Battalion, USAR. His DD Form 214 shows he completed 6 months and 15 days of commissioned officer active service. It also shows in Blocks 4a (Grade, Rate or Rank) and Block 4b (Pay Grade) 1LT/O-2 and in Block 12i (Effective Date of Pay Grade) 2010-08-09. q. On 1 July 2013, he was promoted to captain (CPT) in the USAR. r. On 14 November 2013, AHRC issued him a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). This memorandum notified him that he was eligible for retired pay at age 60. It listed his rank as CPT. s. Orders issued by 63D Regional Support Command, USAR, 6 March 2015, released him from his current assignment at 426th Civil Affairs Battalion at grade/pay grade CPT/O-3 and assigned him to the Retired Reserve effective 5 April 2015. t. His DA Form 5016, 17 October 2021, shows he had 21 years, 3 months, and 15 days of qualifying Reserve service towards non-regular retirement. This form accounts for his enlisted service as well as his commissioned officer service as follows: * enlisted service in the USMC, 10 September 1990 to 9 September 1994 * enlisted service in the USMCR, 10 September 1994 to 24 September 2002 * enlisted service in the USAR, 25 September 2002 to 5 June 2007 * a break in service from 6 June 2007 to 11 October 2007 * enlisted service in the ARNG, 12 October 2007 to 15 August 2008 * commissioned officer service in the ARNG, 16 August 2008 to 25 July 2011 * commissioned officer service in the USAR, 26 July 2011 to 6 April 2015 5. The applicant will be eligible for retired pay at age 60 in August 2031. a. It is unclear if the applicant is claiming he was not paid the proper pay rate, with prior enlisted service, throughout his commissioned service. He has not provided his Leave and Earnings Statements from his time as a commissioned officer, which should confirm his rate of pay. b. Shortly before turning 60, the applicant may apply for retired pay at the highest grade he satisfactorily held and based on the appropriate formula for his grade and years of service, in effect at the time. 6. Pay grades O-1E, O-2E, and O-3E are not ranks; they are pay grades. An O-1E is still a second lieutenant—he/she makes more money than a O-1 due to their years of enlisted service. The same goes for O-2E and O-3E. They have no additional responsibilities or authority than other lieutenants or captains. 7. According to the DOD Financial Management Regulation, Volume 7A, Chapter 1, the Monthly Rates of Basic Pay Table (Commissioned Officers - former enlisted service) differs from commissioned officers without former enlisted service. Creditable service to be taken into account for purposes of this table is active service as an enlisted member or as a warrant officer or as both an enlisted member and a warrant officer, in the case of a commissioned officer on active duty who is paid from funds appropriated for active- duty personnel or a commissioned officer on active Guard and Reserve duty. Effective 24 November 2003, creditable service to be taken into account for purposes of this table in the case of a commissioned officer is service as an enlisted member or as a warrant officer, or as both an enlisted member and a warrant officer, for which more than 1,460 points have been credited to the officer for the purposes of title 10, U.S. Code, § 12732(a)(2). BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board determined that relief 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 and available military records and the Board determined based on DOD Financial Management Regulation the applicant met the criteria for creditable service to be taken into account for purposes of the regulation which states active service as an enlisted member or as a warrant officer or as both an enlisted member and a warrant officer. Evidence in the record show the applicant served a period 3 year, 10 months, and 4 days as a enlisted Solider prior to accepting his commission as a 2LT on 16 August 2008. Based on regulatory guidance the Board determined relief was warranted for correction of his records to show he completed prior enlisted service before his commission with O1E, O2E, and O3E designations, and that he was reassigned as a "grey area" retiree. 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: 1. The Board determined the evidence presented sufficient to warrant relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 to show he completed prior enlisted service before his commission with O1E, O2E, and O3E designations, and that he was reassigned as a "grey area" retiree. 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 ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers), now in effect, covers policy and procedures for assigning, attaching, removing, and transferring U.S. Army Reserve soldiers. It defines Ready Reserve Control Groups and the Selected Reserve. Detailed procedures are given for removing soldiers from an active status. It also gives procedures for interservice transfer and selective retention of unit soldiers. Paragraph 6-1 reads, assignment to the Retired Reserve is authorized if Soldiers have completed a total of 20 years of active or inactive service in the U.S. armed forces. 3. Army Regulation 135-180 (Retirement for Non-Regular Service), now in effect, implements statutory authorities governing the granting of retired pay for non-regular service to Soldiers in the Army National Guard (ARNG), Army National Guard of the United States (ARNGUS) or the U.S. Army Reserve (USAR). a. Chapter 4 provides it is the responsibility of all qualified individuals to submit their application for retired pay no earlier than 9 months and no later than 90 days prior to the date retired pay is to begin. Applications must be submitted on a DD Form 108 (Application for Retired Pay Benefits) and DD Form 2656 (Data for Payment of Retired Personnel). The application will include a SF 1199a (Direct Deposit Sign-up), from the Soldier’s financial institution and any additional supporting documents listed in paragraphs 4–1c (4) through 4–1c(23). Soldiers and former Soldiers should contact their (former) military unit/regional personnel action center or State AG (MPMO/G1) for assistance with obtaining required documentation. b. Paragraph 4-3 provides, upon receipt of a DD Form 108, a computation to determine the number of years of qualifying service, years for percentage purposes, and years for basic pay purposes will be made by the CG, HRC. Generally, service begins on the date of enlistment or induction for enlisted personnel. 4. The website https://www.dfas.mil/RetiredMilitary/plan/Gray-Area-Retirees/Army- Gray-Area-Retirees/ maintained by Defense Financial Accounting Service advises retirees to apply for retirement benefits early, preferably 9 months before retirements benefits into effect. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210015699 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1