MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 14 March 2002
         DOCKET NUMBER: AR2001062784

         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. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Ms. JoAnn H. Langston		Chairperson
Mr. Walter T. Morrison		Member
Mr. Roger W. Able		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 his retired rank and pay grade be changed to major/0-4 (MAJ/0-4).

APPLICANT STATES: In effect, that errors were made in his active duty separation processing that resulted in the Army failing to recognize his dual status as a MAJ/0-4. He also claims that administrative personnel failed to properly transfer him to the United States Army Reserve (USAR) Reinforcement Control Group in this commissioned officer grade upon his separation from active duty and his Regular Army (RA) enlisted status and did not properly advise him on the requirements necessary to protect his dual status options. He also indicates that at the time of his separation from active duty, he had already completed 14 years of active military service and if it had been his intent to continue to serve in an enlisted status, he would have remained on active duty and completed the 6 more years necessary to receive an active duty retirement. He states that when he separated from active duty it was his plan to return to his USAR status in order to qualify for a non-regular age and service retirement in a commissioned officer status, which required that his last 8 years be served in a Reserve Component (RC). In addition, he claims that while he was serving on active duty he completed his Bachelor of Science and Master of Arts Degrees and the Military Intelligence Officer Advance Course and that just prior to his separation he received orders promoting him to MAJ/0-4 in the USAR, effective 29 August 1985. He further claims that subsequent to his separation from active duty, he spent 18 months dealing with the Army Reserve Personnel Command (ARPERSCOM) staff in unsuccessful attempts to obtain a USAR assignment as a commissioned officer. He further states that not once during that period was he advised by the ARPERSCOM staff that an active duty separation order transferring him to the USAR as a MAJ/0-4 was not on file. Although it was his desire to serve in a RC as a MAJ/04 and to complete the Command and General Staff Course, which would likely have resulted in his being promoted to lieutenant colonel and retiring in that grade; at that point, given his age and the 8 year
RC service requirement for retirement, he elected to enlist in the Army National Guard (ARNG) as a staff sergeant (SSG). Finally, he indicates that on 23 August 2001, ARPERSCOM approved his application for retired pay and informed him that his retired grade would be CPT/0-3. He concludes that because of the errors made by active duty personnel during his separation processing, which resulted in his not receiving orders transferring him to the USAR Reinforcement Control Group as a MAJ/0-4 commissioned officer; and the lack of concern, assistance, and advice provided by ARPERSCOM personnel during the
18 months he attempted to obtain a commissioned officer position in the USAR, it is his belief that it would be appropriate to change his authorized retired grade to MAJ/0-4.

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

He served during the following periods in the component and status indicated:
14 September 1959 - 13 September 1963, ARNG, enlisted; 14 September 1963 – 27 February 1964, Regular RC, enlisted; 28 February 1964 - 10 February 1967, RA, enlisted; 11 February 1967 - 7 August 1969, Break in Service, civilian; 8 August 1969 - 7 August 1970, USAR, enlisted; 8 August 1970 - 10 March 1976, USAR, commissioned officer; 11 March 1976 – 22 September 1985, RA, enlisted; 23 September 1985 - 27 February 1987, Break in Service, civilian;
28 February 1987 - 27 February 1989, ARNG, enlisted; 28 February 1989 –
27 February 1994, USAR, enlisted; 28 February 1994 - 27 February 1995, ARNG, enlisted; 28 February 1995 - 17 November 1997, USAR, enlisted.

On 1 September 1970, the applicant was commissioned a second lieutenant in the USAR. On 31 August 1973, he was promoted to first lieutenant and he continued to serve in an active status in the USAR as a commissioned officer until 10 March 1976. On 11 March 1976, he enlisted in the RA and entered active duty in an enlisted status. On 30 August 1977, while serving on active duty as a sergeant/E-5 (SGT/E-5), he was promoted to CPT/0-3 in the USAR.

On 29 August 1985, while serving on active duty as a staff sergeant (SSG/E-6), he was promoted to MAJ/0-4 in his dual status as a commissioned officer in the USAR. However, less than a month later he was released from active duty and issued a separation document (DD Form 214) that confirmed that he was being discharged from military service.

The DD Form 214 issued to the applicant on 22 September 1985, the date of his separation, contains the entry “NA” in Item 9 (command to which transferred) and the entry “Discharge” in item 23 (type of separation). These entries confirm that he was not transferred to a RC to continue his military service at that time and that he began a break in his military service on the day following his release from active duty.

On 17 June 1997, ARPERSCOM officials notified the applicant, in a letter of notification of eligibility for retired pay at age 60 (Twenty Year Letter), that he had completed the necessary qualifying years to receive retired pay at age 60 upon application.

On 23 August 2001, ARPERSCOM officials approved the applicant’s request for retired pay and published Orders Number P-08-304905. These orders authorized the applicant’s placement on the Retired List under the provisions of Title 10 of the United States Code, section 12731 (10 USC 12731), effective
13 October 2001, in the retired grade of CPT/0-3.

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10 USC 12731 provides the legal authority and age and service requirements for members eligible for non-regular retirement. It states, in pertinent part, that members who have completed at least 20 years of creditable service are entitled to receive retired pay, upon application, when they reach age 60.

10 USC 1370 provides the legal authority retirement in the highest grade satisfactorily held. It states, in pertinent part, that in order for a Reserve officer below the rank of lieutenant colonel to be credited with satisfactory service in a higher grade, they 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 months.

10 USC 1406 provides the legal authority for establishing the final basic pay for members who entered military service before September 1980. This provision of the law states, in effect, that members eligible for non-regular retired pay at age 60 are entitled to receive that pay based on the highest pay grade they held satisfactorily.

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 notes the applicant’s contentions that he was improperly advised during his active duty separation processing and that he should have been transferred to the USAR Control Group in the rank of MAJ/0-4 at that time. However, the Board finds insufficient evidence to support these claims.

2. By law, members eligible for non-regular retired pay at age 60 are entitled to receive that pay based on the highest pay grade they held satisfactorily. The law further stipulates that in order to be credited with satisfactory service in a higher grade, a member must have served satisfactorily in that higher grade as a Reserve commissioned officer in an active status, or in a retired status on active duty, for not less than six months.

3. The evidence of record confirms, although the applicant was promoted to MAJ/0-4 while serving on active duty in an enlisted status, he held that grade for less than a month prior to being discharged from military service. It further shows that the highest commissioned officer grade he held for not less than
6 months was CPT/0-3 and that this was the grade in which he was placed on the Retired List.

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4. Notwithstanding his statement to the contrary, the applicant has failed to provide independent evidence that proves he was improperly counseled or unjustly denied the right to transfer to the USAR at the time of his separation from active duty. Thus, the Board concludes there is insufficient evidence to support granting the requested relief.

5. 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.

6. 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

__JHL__ __WTM__ __RWA___ DENY APPLICATION

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

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INDEX

CASE ID	AR2001062784
SUFFIX
RECON
DATE BOARDED	2002/03/14
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	1985/09/22
DISCHARGE AUTHORITY	AR 635-200 C4
DISCHARGE REASON	ETS
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 319	131.0900
2.
3.
4.
5.
6.