MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 6 December 2001
         DOCKET NUMBER: AR2001061075

         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
Ms. Wanda L. Waller		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. Thomas A. Pagan		Member
Mr. Harry B. Oberg		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 sergeant first class/E-7 (SFC) to captain/0-3 (CPT).

APPLICANT STATES: In effect, that he should be promoted to his highest rank held.

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

The applicant served on active duty in the Navy from 14 July 1960 through
26 August 1963 and in the U.S. Naval Reserve from 27 August 1963 through
28 March 1966.

He entered active duty on 29 March 1966 in the Regular Army in an enlisted status. On 24 April 1967, the applicant was honorably separated, in the rank and pay grade of specialist five/E-5, in order to accept a commission.

On 25 April 1967, the applicant was commissioned as a second lieutenant in the Regular Army and entered active duty in a commissioned officer status. He served in that status for 4 years, 8 months and 11 days until 5 January 1972, when he was honorably separated, in the rank and pay grade of CPT/0-3, as a result of his voluntary request for discharge.

The applicant subsequently served as a commissioned officer in the U.S. Army Reserve (USAR) from 6 January 1972 through 10 April 1972, in the Army National Guard from 11 April 1972 through 10 November 1972, in the USAR from 11 November 1972 through 18 February 1974, in the Army National Guard from 19 February 1974 through 12 August 1974, and in the USAR from
13 August 1974 through 26 February 1976.

After a break in service, the applicant enlisted in the Army National Guard on
12 October 1983 in an enlisted status and served in that status until 28 October 1984. On 29 October 1984, he entered active duty in the Active Guard Reserve (AGR) program in the Army National Guard in an enlisted status. He served in that status until 6 May 1987, when he was honorably separated, in the rank and pay grade of SFC/E-7, to accept a commission as an officer in the AGR program.
On 7 May 1987, the applicant entered active duty in the AGR program in the Army National Guard as a commissioned officer. He served in that status for
3 years, 6 months and 24 days until 30 November 1990, when he was honorably separated, in the rank of CPT/0-3, to become an enlisted member.

On 1 December 1990, the applicant reentered active duty, in the rank and pay grade of SFC/E-7, in the AGR program in the Army National Guard. He served in that status until 30 September 1995, when he was released from active duty, for the purpose of retirement, after completing a total of 20 years and 18 days of active Federal service. On the date of his separation he still held the rank of pay grade of SFC/E-7.

In the processing of this case, a staff advisory opinion was obtained from the Retirement and Annuities Branch, U.S. Army Reserve Personnel Command. That office recommends that the applicant’s request for advancement be denied at this time. The opinion points out that the applicant completed 20 years and
18 days of active Federal service at the time of his retirement and was holding the highest enlisted pay grade of SFC/E-7 while on active duty. To be eligible for advancement on the Retired List, a member’s active service plus his retired Reserve service must total 30 years. The applicant’s active service will not total 30 years until 13 September 2005. He will be advanced to CPT/0-3, the highest commissioned grade on active duty. That office recommends that the applicant submit his claim for advancement 120 days prior to 13 September 2005, at which time he will be advanced on the Retired List.

The advisory opinion was forwarded to the applicant for his review and possible rebuttal. However, he did not respond within the given timeframe.

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 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 provided 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, (or, in the case if 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 applicant’s contention that he should have been advanced to the rank and pay grade of CPT/0-3 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.

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. Evidence of record shows the applicant completed 20 years and 18 days of total active service, of which only 8 years, 4 months and 21 days were in a commissioned officer status. Evidence of record also shows that the applicant’s active service will not total 30 years until 13 September 2005. Therefore, at this time, the applicant is not eligible for advancement to CPT/0-3 on the Retired List in accordance statutory provisions.

5. The Board notes that the advisory opinion points out that the applicant will be advanced to CPT/0-3 on the Retired List, the highest commissioned grade on active duty, if he submits a claim for advancement 120 days prior to
13 September 2005.

6. 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 this requirement.

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____ TAP_____ HBO____ DENY APPLICATION

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

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INDEX

CASE ID	AR2001061075
SUFFIX
RECON
DATE BOARDED	20011206
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	131.0900
2.
3.
4.
5.
6.