2. The applicant requests remission or cancellation of indebtedness incurred when his retired pay was erroneously based on the rank of major rather than the rank of captain.
3. The applicantÂ’s military records show that prior to his appointment as a Reserve commissioned officer he served in the Army Reserve (USAR) and Active Components. He entered active duty on 1 July 1966. He was promoted to captain effective 1 July 1968. He was honorably released from active duty on 8 September 1973. He enlisted in the Regular Army on 1 October 1973. He was promoted to major (USAR) on 8 September 1978. He was promoted through the ranks to sergeant major on 11 November 1983. He was discharged from enlisted status on 31 July 1990 with more than 30 years of creditable active service and erroneously placed on the retired list in the rank of major.
4. On 10 November 1992, the applicant was notified that correction had been made by the Department of the Army, Total Army Personnel Command (PERSCOM) to show that he was retired with the rank of captain vice major. The correction was based on the law which requires that an enlisted soldier may only be advanced upon retirement to the highest grade held on active duty. Since the applicant had never served on active duty as a major, placing him on the retired list in that rank was erroneous. The PERSCOM had advised the Defense Finance and Accounting Service (DFAS) not to recoup the erroneous overpayment of retired pay but, at the same time, recommeded that the applicant to apply to this Board.
CONCLUSIONS:
1. The evidence of record shows that the applicant had been appointed a Reserve commissioned officer and served on active duty with the rank of captain.
2. Subsequent to his release from active duty as an officer, he enlisted in the Regular Army and served as an enlisted soldier until his release from active duty with more than 30 years of creditable active service and placement on the retired list as a commissioned officer.
3. Since the highest grade the applicant held on active duty was captain, he should have been placed on the retired list with that rank.
4. The records show that the applicant had also held the rank of major; therefore, he had no reason to suspect that receiving retired pay based on that rank was erroneous, and he certainly should not be penalized for the error made by administrative personnel who should be familiar with the applicable sections of the law.
5. In consideration of the foregoing, it would be just to correct the records as recommended below.
RECOMMENDATION:
That all of the Department of the Army records related to this case be corrected by remitting the indebtedness of the individual concerned due to an erroneous overpayment of retired pay based on the rank of major and by reimbursing him for moneys collected based on that overpayment.
BOARD VOTE:
GRANT AS STATED IN RECOMMENDATION
GRANT FORMAL HEARING
DENY APPLICATION
CHAIRPERSON
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