MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 30 August 2001
         DOCKET NUMBER: AR2001058032

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. William Blakely		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor, Jr.		Chairperson
Mr. Christopher J. Prosser		Member
Ms. Linda D. Simmons		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: In effect, that he be advanced on the Retired List from the rank and pay grade of captain/0-3 (CPT/0-3) to major/0-4 (MAJ/0-4) with an effective date of 1 February 1995.

APPLICANT STATES: In effect, that at the time of his retirement he would be advanced on the Retired List to the rank of CPT, which would become effective on 1 February 1994. Also, he was advised that upon reaching age 60 he would be advanced on the Retired List to the highest grade he held on active duty or in the United States Army Reserve (USAR). He states that he was advised by a clerk at Retired Activities Branch, US Army Reserve Personnel Command (ARPERSCOM) that he was eligible for advancement on the Retired List to the rank of major with an effective date of 1 February 1995. In support of his application he submits a copy of his USAR promotion letter to major, dated
16 August 1980, a copy of his Application For Voluntary Retirement (DA Form 2339), and a letter dated 2 May 1994, from the Chief, Transitions and Separation Branch ARPERSCOM.

EVIDENCE OF RECORD: The applicant's military records show:

He served on active duty in an enlisted status for 4 years, 5 months, and
19 days, from 10 February 1964 through 28 July 1968, when he was honorably discharged, in the rank and pay grade of staff sergeant/E-6, in order to accept a commission.

On 29 July 1968, the applicant was commissioned a second lieutenant (2LT) in the USAR and entered active duty in a commissioned officer status. He satisfactorily served in that status for 5 years, 1 month, and 7 days until
5 September 1973, when he was honorably separated, in the rank and pay grade of CPT/0-3, as a result of being selected for release from active duty by the Department of the Army Active Duty Board.

On 6 September 1973, the applicant immediately reentered active duty after reverting to an enlisted status, in the rank and pay grade of staff sergeant/E-6 (SSGT/E-6). He continuously served until 31 January 1985, when he was released from active duty (REFRAD), for the purpose of retirement, after completing a total of 20 years, 11 months, 21 days of active military service. On the date of his separation he held the rank and pay grade of
master sergeant/E-8.

The promotion letter submitted by the applicant, dated 6 June 1980, issued by ARPERSCOM, shows that on 27 July 1980, he was promoted to the rank of MAJ/0-4 in the USAR, while serving in the Regular Army on active duty as a sergeant first class/E-7.

The letter dated 2 May 1994, from the Chief, Transitions and Separation Branch ARPERSCOM, informed the applicant that he would be advanced on the Retired List effective 10 February 1994, to the grade of CPT.

The file contains a letter dated 21 June 2001, signed by the Chief, Transitions and Separation Branch, ARPERSCOM, in response to the applicant’s request for further advancement on the Retired List. The letter informed the applicant that he was advanced on the Retired List to the rank of CPT, effective 10 February 1994, the highest commission grade he held on active duty in accordance with Title 10 United States Code, section 3964. In addition, he was not entitled to further advancement on the Retired list under any other statutory provisions of law.

A Department of the Army (DA) Form 3713 (Data for Retired Pay), dated
25 April 1994, confirms the applicant as a result of his having satisfactorily served in the highest grade to which he was promoted, paid, and served in on active duty as a commissioned officer, was placed on the Retired List in the rank and pay grade of CPT/0-3, effective 10 February 1994.

Under the provisions of Army Regulation 600-39, the Dual Component Program provided for individuals serving in the Regular Army in an enlisted or warrant officer status to hold a commission in the Army Reserve.

Title 10, United States Code, section 1370 (d) provides that in order to be credited with satisfactory service in an officer grade (other than a warrant officer grade) below the grade of lieutenant colonel or commander, an individual must have served satisfactorily in that grade as a Reserve commissioned officer in an active status, or in a retired status on active duty, for not less than 6 consecutive months.

Title 10, United States Code, section 3911, states that Regular or Reserve commissioned officers may retire as commissioned officers if they have at least 20 years of service, 10 years of which have been active duty service as a commissioned officer. The law provides no provisions for placing a commissioned officer on the Retired List in a rank he was promoted to in the USAR while serving on active duty in an enlisted status in a dual component program.

Rank on the Retired List is based solely on the highest rank in which a member satisfactorily served on active duty. USAR service in an inactive status while a member of a dual component program does not satisfy the active duty satisfactory service provisions of the law.

Title 10, United States Code, section 3964, provides that a retired enlisted member or warrant officer of the Army who is retired with less than 30 years of active service is entitled, when his active service plus his service on the Retired List totals 30 years, to be advanced on the Retired List to the highest grade in which he served on active duty satisfactorily, (or, in the case of a member of the National Guard, in which he served on full-time duty satisfactorily) as determined by the Secretary of the Army.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. The Board noted the contention of the applicant that he should have been advanced to the rank and pay grade of MAJ/0-4 on the Retired List but finds this claim lacks merit.

2. By law, a commissioned officer of the Army who has at least 20 years of service, of which 10 were served on active duty in a commissioned officer status, may retire in that status. The law also provides for commissioned officers to be retired in the highest grade in which they satisfactorily served on active duty for not less than 6 months. The record clearly shows the applicant did not complete 10 years of active duty service as a commissioned officer and thus was not eligible to be placed on the Retired List in that status.

3. The record further verifies that the applicant’s promotion to MAJ/0-4 was in the USAR and was attained while he was serving on active duty in an enlisted status as part of a dual component program. There is no evidence to show that he ever served on active duty in that rank and pay grade and it is clear that the highest commissioned officer rank and pay grade he held and satisfactorily served in on active duty was CPT/0-3.

4. The record clearly shows that, under applicable provisions of the law, the applicant was advanced on the Retired List to the highest commissioned officer grade in which he served satisfactorily on active duty, CPT/0-3, effective
10 February 1994, when his active duty service and time on the Retired List equaled 30 years. Thus, the Board concludes he is not eligible for further advancement on the Retired List based on his USAR promotion to MAJ/0-4 and that he is not entitled to further advancement on the Retired list under any other statutory provisions of law.

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

___RVO__ __CJP__ __LDS __ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001058032
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2001/08/30
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	129.04
2.
3.
4.
5.
6.