IN THE CASE OF: BOARD DATE: 16 August 2023 DOCKET NUMBER: AR20230000886 APPLICANT REQUESTS: reconsideration of his request for: •full pay and allowances from 1 September 2015 through 30 November 2015 •a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: •DD Form 149 (Application for Correction of Military Record) •DA Form 4037 (Officer Record Brief (ORB) •Email from U.S. Army Human Resources Command (AHRC) •AHRC Advisory Opinion AR20160008676 •Army Board for Correction of Military Records (ABCMR) AdjudicationAR20160008676 •Defense Finance Accounting Service (DFAS) Notification •Retiree Pay Statements April 2021 and August 2022 FACTS: 1.Incorporated herein by reference are military records which were summarized in theprevious consideration of the applicant's cases by the ABCMR in Docket NumbersAR20160008676 on 4 March 2019 and AR20220000272 on 12 April 2022. 2.The applicant states in effect: a.His Interactive Personnel Electronics Record Management System record andORB reflected his Mandatory Retirement Date (MRD) as 1 July 2016. At the end of April 2015, he was notified by AHRC that there was a mistake and his new MRD was changed to July 2015, giving him a mere three months until his retirement. This was due to an admitted error on AHRC's part and not an error on his. b.While AHRC recommends that military retirement preparation be accomplishedover an 18 month period, he was given less than four months to complete all retirement requirements, find new housing, find a new job, prepare to move, etc. Because he was forced to retire early, he lost (not sold) over 34 days of leave that he had been saving for terminal leave. He requested an extension of his retirement until December 2015 but was denied by AHRC. They gave him a 30-day extension and recommended that he seek restitution, once retired, through the ABCMR. c.He did as directed and applied to the Board in April 2016. In May 2018, AHRCprovided an advisory opinion to the Board in which they agreed that his MRD was erroneously reflected by AHRC which forced his retirement a year earlier than was initially on his records. In their advisory opinion, AHRC stated that for him to receive full relief, the ABCMR should grant active-duty service credit from 1 September 2015 through 30 November 2015 and direct DFAS to adjust his pay accordingly. d.The ABCMR provided him with the advisory opinion and invited a response. Heresponded that he supported and agreed with the advisory opinion. The ABCMR met in April 2019 and granted only partial relief. They directed that all Army records be corrected to add active-duty credit for 1 September 2015 through 30 November 2015 and that his DD Form 214 (Certificate of Release or Discharge from Active Duty) be amended to the same. e.Despite AHRC's advisory opinion recommendation, the Board denied the fullactive duty pay and allowances. He served for two years on the ABCMR and is fully aware that it is not bound by the advisory opinion. He knows that the Board can opt for a different route based on their analysis of the facts and circumstances. But this was an advisory opinion from the very command who made the initial error. He is not privy to the analysis that the Board did to come to a different conclusion. f.In May 2019, he received a letter from AHRC providing him with a DD Form 215(Correction to DD Form 214, Certificate of Release or Discharge from Active Duty) that reflects his new retirement date of 30 November 2015. g.In early 2021, he received a letter from DFAS retired pay indicating that becausehe was not in a retired status from 1 September 2015 through 30 November 2015, he was indebted for repayment of retired pay for that period in the amount of $13,656.00 ($12,766.86 after Survivor Benefit Plan). He attached his retired pay statements showing the first and last collections, April 2021 and August 2022, which shows his debt balance on page 2. h.It is with this new documentation that he is, once again, appealing to the ABCMR.AHRC provided the advisory opinion that recommended he be credited with active-duty time and pay. He realizes that the advisory opinion is just that, advice. However, that opinion was provided by the command that made the initial error that caused this injustice. Their opinion should bear significant weight. i.AHRC's recommendation for full relief was stated in that advisory opinion. Whilehe is appreciative of the half relief that was granted, denying full relief resulted in him losing retirement pay for that period. He agrees that he was no longer entitled to retired pay for that period; however, the Board must agree that there is injustice in denying the full relief as recommended by AHRC. He received no active-duty pay and allowances for the credited active-duty period; and he had to return his retired pay. The error is present, the injustice is present, half relief does not correct that error of injustice. 3.The applicant's service record contains the following documents for the Board'sconsideration: a.DA Form 71 (Oath of Office - Military Personnel) shows the applicant completedthe oath of office and was appointed as a Reserve commissioned Officer on 10 August 1993. b.Orders Number 153-0026, published by AHRC, dated 2 June 2015 honorablyseparated the applicant, effective 31 August 2015. Orders Number 008-010, published by the Installation Management Command, dated 8 January 2021, amended the separation date to 30 November 2015 and the applicant was placed on the retired list on 1 December 2015. c.DA Form 4037, dated 28 August 2015, shows the applicant's MRD as 31 August 2015. d.DD Form 214 transferred the applicant to the U.S. Army Reserve Control Group(Retired). He completed 21 years, 10 months, and 26 days of net active service with 6 years, 4 months, and 12 days of prior active service. A DD Form 215, dated 6 May 2019, corrected items: •12b (Separation Date This Period) to 30 November 2015 •12c (Net Active Service This Period) to 22 years, 1 month, and 26 days 4.The applicant provides the following documents, not previously considered, for theBoard's consideration: a.DA Form 4037 dated 2 October 2014, which shows his MRD as 1 July 2016. b.An email from AHRC, dated 30 April 2015, subject MRD Update, which states theretirement section at AHRC could grant the applicant an extension of 60 days to 1 August 2015 for his retirement. They suggested the applicant start his retirement preparation at that time. He would not be granted any further extensions beyond 1 August 2015. b.An advisory opinion from AHRC, dated 4 May 2018, for ABCMR Docket NumberAR20160008676, which states in effect: (1)The applicant requested to have his retirement date retroactively extendeduntil 24 November 2015 or restitution of monies lost by selling or losing leave. (2)AHRC was unable to grant full administrative relief in regard to the applicant'srequest. (3)The applicant's MRD was erroneously reflected as 30 June 2016 on his ORB.On 27 April 2015, during a records scrub for notification of officers with MRDs within the next 12 months, it was discovered that the applicant's MRD was incorrect and should have been reflected as 30 June 2015. (4)The applicant submitted a request for MRD extension from 30 June 2015 until31 December 2015. His request was disapproved by the Commanding General of AHRC on 14 July 2015, as there is no provision within Title 10, United States Code (USC), section 633 to extend MRD based on time in service. (5)In order for the applicant to receive full relief, the Board will need to direct theapplicant receive active duty service credit for the period from 1 September 2015 through 30 November 2015 and that DFAS adjust his pay accordingly. Alternatively, the Board direct DFAS to reimburse the applicant for the loss of leave and entitlements. d.The Board decision from AR20160008676, dated 3 April 2019, wherein the Boardprovided the applicant partial relief. A copy of the Record of Proceedings, dated 4 March 2019 is available for the Board's consideration. The applicant brings the following, under Board Discussion, to the Board's attention, "the Board agreed to add the service time, but denied the pay and entitlements." e.A letter from DFAS, dated 23 February 2021, which states, they had correctedthe applicant's record to show active duty credit from 1 September 2015 to 30 November 2015. This moved his retirement date from 1 September 2015 to 1 December 2015. Because of the correction, his retired pay account reflected his gross monthly pay changed from $6,621 to $6,701. He had a gross pay debt in the amount of $23,656.00 less credit of $889.14 for SBP premiums for an adjusted debt of $12,766.86 for the period beginning 1 September 2015 and ending 28 February 2021. f.Retiree Account Statements effective 21 April 2021, which shows the applicant'sdebt balance was $12,051.90 and from 23 August 2022, which shows he no longer had a debt balance. 5.On 3 April 2019, the applicant received partial relief by the Board inAR20160008676, when the Board corrected his retirement date to 1 December 2015but denied providing him pay and allowances from 1 September 2015 through 30 November 2015. The entire Board packet is available for the Board's consideration. 6.The applicant requested reconsideration to receive pay and allowances from 1 September 2015 through 30 November 2015 in ABCMR Docket NumberAR20220000272. On 12 April 2022, the Board denied his request stating: a.The Board carefully considered the applicant's request supporting documents,evidence in the record, and published Department of Defense guidance for liberal consideration of discharge upgrade requests. b.The Board considered the applicant's statement, the applicant's record of service,and the previous submission/decision. He previously submitted a request for MRD extension from 30 June 2015 until 31 December 2015, but his request was disapproved by the Commanding General, AHRC on 14 July 2015, as there is no provision within Title 10, USC, section 633 to extend an MRD based on time in service. c.Nevertheless, although there are no statutory requirements to do so, this Boardpreviously amended his DD Form 214 by adding additional active duty service credit for the period from 1 September 2015 through 30 November 2015. However, the Board denied so much of the application that pertained to authorizing pay and entitlements for the additional active-duty service credit and reimbursement for loss of leave and entitlements. d.The Board extended his MRD in order to satisfy his wishes. The applicantprovided no new evidence that would lead this Board to change the findings of the previous Board with respect to pay or leave. e.The entire Board packet is available for the Board's consideration. 7.The ABCMR requested AHRC provide a clarifying statement to the advisory opinionin ABCMR Docket Number AR20160008876, which stated, "in order for the applicant toreceive full relief, the Army Review Boards Agency will need to direct that the applicantreceive active-duty credit for the period from 1 September 2015 through 30 Novembers 2015, and DFAS adjust his pay accordingly." Therecommended/requested clarifying statement would say "he was paid applicable payand allowances for the period 1 September 2015 through 30 November 2015." AHRCreplied they cannot provide an opinion on this. They do not handle pay and cannotverify he was paid the right amount. This should go to DFAS. BOARD DISCUSSION: 1.After reviewing the application, all supporting documents, and the evidence foundwithin the military record, the Board found that relief was warranted. The Board carefullyconsidered the applicant's record of service, documents submitted in support of thepetition and executed a comprehensive and standard review based on law, policy andregulation. Upon review of the applicant’s petition and available military records, theBoard determined it is an injustice to deny the applicant pay for the previously grantedactive-duty service credit after the HRC MRD error. The Board recognized, to beconsistent with para. 3 of the 4 May 2018 HRC Advisory Opinion. The Board noted,correction of his pay would remedy the problem caused by the Board’s decision inAR20160008676, granting the applicant service time but denying him pay andentitlements for that same time. 2.The Board agreed this correction would remedy the injustice of the unexpected MRDcurtailment due to HRC error, followed by a $13,656.00 recoupment bill due to thepartial previous Board grant. The Board determined the previous decision corrected aninjustice on behalf of the applicant as it allowed the service extension but withoutcommensurate pay and entitlements and cost him significant retirement pay loss.Evidence from DFAS does not reflect the applicant sold his leave. Therefore, the Boardgranted relief for the applicant to receive full pay and allowances from 1 September2015 through 30 November 2015. 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 equitabledecision. As a result, a personal appearance hearing is not necessary to serve theinterest 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 directing that the applicant receive active-duty credit for the period from 1 September 2015 through 30 Novembers 2015, and DFAS adjust his pay accordingly. The applicant should be paid applicable pay and allowances for the period 1 September 2015 through 30 November 2015. Microsoft Office Signature Line... 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 633 (Retirement for years of service: lieutenant colonels andcommanders) states except as provided in subsection (b) and as provided undersection 637(b) or 637(a) of this title, each officer of the Regular Army who hold theregular grade of lieutenant colonel, who is not on a list of officers recommended forpromotion to the regular grade of colonel, shall, if not earlier retired, be retired on thefirst day of the month after the month is which he completes 28 years of activecommissioned service. 2.Army Regulation (AR) 600-8-24 (Officer Transfers and Discharges) states amandatory retirement is required by law and is initiated by Headquarters, Department ofthe Army (HQDA). An officer must be retired on the date established by the applicablestatute unless specifically provided by law. An officer may request retirement and beretired voluntarily on MRD. a.The Secretary of the Army is the approval authority for retirements. TheSecretary of the Army has delegated approval authority for voluntary retirement (waiver/nonwaiver) to the Commanding General, AHRC who may approve, disapprove, or delay/defer the requested retirement date of an officer who has completed 20 but less than 30 years of active federal service. Approval of retirement requests may be mandatory or discretionary, based on the specific provision of law. Delegation of approval authority does not include mandatory retirements (when an officer has been notified by HQDA, for example, of Selective Early Retirement Board, reduction in force, maximum service, or maximum age. b. The maximum service notification memorandum will be forwarded by AHRC to the officer and their commander approximately 9 months before the officer's scheduled retirement date. The memorandum advises the officer of their approaching retirement, expressing appreciation for service, and includes a suggestion that contact be made with the local examining facility concerning any medical defects of which the officer is aware. The memorandum includes the officer's mandatory retirement date, the specific statutory authority for the retirement, and pertinent data. 3. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. It states: a. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The applicant has the burden of providing an error or injustice by a preponderance of the evidence. b. 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. 4. Title 31, U.S. Code, section 3702, also known as the Barring Statute, prohibits the payment of a claim against the Government unless the claim has been received by the Comptroller General within 6 years after the claim accrues. Among the important public policy considerations behind statutes of limitations, including the 6-year limitation for filing claims contained in this section of Title 31, U.S. Code, is relieving the Government of the need to retain, access, and review old records for the purpose of settling stale claims, which are often difficult to prove or disprove. //NOTHING FOLLOWS//