MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 13 September 2001
         DOCKET NUMBER: AR2001059673

         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. Fred N. Eichorn		Chairperson
Mr. John E. Denning		Member
Mr. Terry L. Placek		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 to the rank and pay grade of major/0-4 (MAJ/04).

APPLICANT STATES: In effect, that he was entitled to be advanced to MAJ/0-4 on the Retired List on 24 February 2000. In support of his application, he submits copies of the following documents: application for voluntary retirement
(DA Form 2339); retirement orders; separation document (DD Form 214); and orders assigning him to the United States Army Reserve (USAR) Control Group Retired.

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

He served on active duty in an enlisted status for 1 year, 1 month, 12 days, from
15 February 1966 through 26 March 1967, when he was honorably separated, in the rank and pay grade of specialist five/E-5, in order to accept a commission.

On 27 March 1967, 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 3 years until 26 March 1970, when he was honorably separated, in the rank and pay grade of CPT/0-3, as a result of the expiration of his active duty commitment.

Upon his separation from active duty, the applicant entered the Individual Ready Reserve (IRR) of the USAR, in the rank and pay grade of captain/0-3 (CPT/0-3). He remained in that status from 27 March to 13 December 1973, during which time he performed active duty tours from 5 August to 19 August 1972 and
25 March to 12 December 1973.

On 13 January 1975, the applicant reenlisted in the Regular Army in an enlisted status, in the rank and pay grade of sergeant/E-5 (SGT/E-5). He continuously served in that status until 30 April 1990, when he was released from active duty (REFRAD) for the purpose of retirement, after completing a total of 20 years,
2 months, and 3 days of active military service. On the date of his separation, he held the rank and pay grade of sergeant first class/E-7 (SFC/E-7) and on the following day he was placed on the Retired List in that rank and pay grade.

The applicant’s record contains a copy of a promotion letter, dated 29 January 1979, which was issued by the Army Reserve Personnel Command. It shows that on 26 March 1979, while serving on active duty in the Regular Army as a SGT/E-5, he was promoted to the rank of MAJ/0-4 in the USAR.

This was the highest officer rank the applicant attained while serving in this dual component program and was the USAR officer rank he held on the date of his retirement. However, the record confirms that he never served on active duty in this rank and pay grade of MAJ/0-4.

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On 6 September 2001, the Army Grade Determination Review Board (AGDRB), at his request, reviewed the applicant’s record for advancement on the Retired List. It was determined the highest grade he satisfactorily held for the purpose of advancement on the Retired list was CPT/0-3 and he was advanced to that rank and pay grade on the Retired List. His advancement to MAJ/0-4 was denied based on the fact he had never held and satisfactorily served in that rank and pay grade while on active duty.

Under the provisions of Army Regulations 600-39, the Dual Component Program, individuals serving in the Regular Army in an enlisted or warrant officer status were allowed to hold concurrent commissioned officer grades in the USAR.

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 on active duty for not less than six 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.

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. Rank placement 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 this active duty satisfactory service provision of the law.

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:

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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, in the highest commissioned officer grade in which they satisfactorily served on active duty for not less than six months.

3. In addition, the law provides for the advancement on the Retired List of enlisted and warrant officer members of the Army, to the highest grade in which they satisfactorily served on active duty, when their active duty service and time on the Retired List equals 30 years.

4. The evidence of record reveals that the applicant was advanced to the rank and grade of CPT/0-3 on the Retired List by the AGDRB based on this being the highest commissioned officer rank and pay grade he held and satisfactorily served in while on active duty.

5. The record further verifies that the applicant’s promotion to MAJ/0-4 was in the USAR and attained while he was serving on active duty in the Regular Army in an enlisted status as part of a dual component program. It also clearly establishes that he never served on active duty in the rank and pay grade of MAJ/0-4.

6. The record clearly shows that the applicant was advanced on the Retired List to the highest commissioned officer grade in which he served satisfactorily on active duty. Thus, the Board concludes the applicant is not eligible for advancement on the Retired List beyond that already granted by the AGDRB based on his USAR promotion to MAJ/0-4.

7. 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

_ FNE __ __JED__ _ _TLP _ DENY APPLICATION

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

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INDEX

CASE ID	AR2001059673
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2001/09/13
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.	131.0900
2.
3.
4.
5.
6.