APPLICANT REQUESTS: That he be retired in the pay grade of 0-5 instead of 0-4.
APPLICANT STATES: That he was serving as an Active/Guard Reserve (AGR) officer when he was selected for promotion to the pay grade of 0-5. He further states that his effective date of promotion was to be 6 September 1989 provided that he was serving in an 0-5 position. He goes on to state that he was serving in an 0-5 position at that time and was scheduled for mandatory retirement on 30 November 1989. However, he submitted a request for an extension of his service to allow him to accept his promotion and retire in the pay grade of 0-5. He contends that he was unjustly denied an extension of service and forced to retire in the pay grade of 0-4 while others in the same situation were granted extensions of service and allowed to retire in the higher grade.
EVIDENCE OF RECORD: The applicant's military records show:
The applicant, while serving as an AGR officer on active duty in the pay grade of O-4, was selected for promotion to the pay grade of 0-5 with an effective date of promotion of 6 September 1989. The letter dated 24 October 1988, which notified the applicant of his promotion selection, also informed him that in order for him to be promoted he must be assigned to a duty position authorized a grade equal to or higher than the grade he was selected for (O-5 or higher).
On 25 April 1989 the applicant submitted a request for an extension of service to 31 March 1990 so as to allow him to be promoted to the pay grade of 0-5 and to serve the required 6 months in grade. He also indicated that he was serving in an 0-5 position and provided the position number.
There is no indication in the available records to show the final outcome of his request. However, the applicant states that it was disapproved and he was forced to retire, which is supported by the evidence of record.
On 31 October 1989 he was honorably released from active duty in the pay grade of 0-4 and placed on the Retired List effective 1 November 1989.
In the processing of this case, an advisory opinion (COPY ATTACHED) was obtained from the Army Reserve Personnel Center (ARPERCEN). It opined, in effect, that in order to be assigned to an authorized position in the pay grade of 0-5 as an AGR officer, orders would have had to be published by the ARPERCEN authorizing such an assignment. There is no indication that any such orders were ever published. Furthermore, at the time the applicant was eligible for promotion (1989), there was a backlog of promotable majors in the AGR Program and the average waiting time for promotion was 18 months on the list. Consequently, the Chief, Army Reserve (CAR) initiated an Assignment Advisory Board. However, because the applicant was within 90 days of completing 20 years of Active Federal Service (AFS), he was not considered. In addition, the statutory constraints in 1989 prohibited the retention of personnel in the pay grade of 0-5 after completing 20 years of AFS.
Army Regulation 140-30 prescribes the policies and procedures for managing USAR soldiers on active duty in the AGR Program. It states in pertinent part, that the CAR may authorize, subject to Secretary of the Army approval, the retention of USAR officers past 20 years of AFS based on the needs of the service for the particular experience and qualifications of the soldier. When the CAR determines that insufficient qualified officers are available to meet the requirements of the AGR program in any grade, he may initiate a voluntary retention program to retain AGR officers on active duty past 20 years of AFS.
Army Regulation 140-30 also states that officers who have been promoted and are serving in that higher grade prior to completing 20 years of AFS, but who have served less than 6Â months on active duty in the higher grade at the time they complete 20 years of AFS, will be retained in the AGR program until they have completed at least 6 months of active duty unless the CAR makes a determination that statutory constraints for the higher grade prohibit retention in that specific grade.
DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:
1. The applicantÂ’s contentions have been noted by the Board. However, in the absence of evidence to the contrary, it must be presumed that the applicant was not promoted to the pay grade of 0-5 due to his not occupying a position duly recognized and authorized by the ARPERCEN.
2. Inasmuch as the applicant submitted a request for retention and promotion which was denied, it must also be presumed that a determination was made by the appropriate authority, based on the circumstances at that time, that the applicant should not be retained past 20 years of AFS.
3. Consequently, the applicant was properly released from active duty in the pay grade of 0-4 and placed on the Retired list in that grade effective 1 November 1989.
4. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy the aforementioned requirement.
5. In view of the foregoing, there is no basis for granting the applicant's request.
DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.
BOARD VOTE:
GRANT
GRANT FORMAL HEARING
DENY APPLICATION
Karl F. Schneider
Acting Director
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