MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 25 March 2003
         DOCKET NUMBER: AR2002073080

         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. G. E. Vandenberg		Analyst

The following members, a quorum, were present:

Mr. John N. Slone		Chairperson
Mr. Melvin H. Meyer		Member
Mr. John T. Meixell		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: That his name be added to the Dual Status List (Dual Component Personnel Management Program) and that he be allowed to retire in the grade of captain.

APPLICANT STATES: In effect, that it will create a financial hardship for him to retire in his enlisted pay grade and not as an officer. He states that, in order to complete 20 years of active service for retirement, he enlisted in 2000 after twice being non-selected for promotion to major. He states that, at that time, he was told that he would be able to retire in the highest grade held upon completion of his remaining active duty.

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

The applicant entered active duty on 25 January 1977. He completed basic combat training and advanced individual training. He was discharged as a specialist five (E-5) on 14 August 1980 in order to accept a commission.

On 15 August 1980, the applicant was commissioned a second lieutenant and served on active duty until 9 August 1984. He served in the officer career group of armor and attained the rank of captain.

On 10 August 1984, the applicant was transferred to the Individual Ready Reserve (IRR) at his request.

On 2 January 1991, the applicant returned to active duty as a chaplain and served in that capacity until, as a result of being twice non-selected for promotion to major, he was discharged on 31 January 2000. The applicant completed an Acknowledgment of Mandatory Release or Discharge form indicating that he was a USAR officer and desired to retain his commission and be released from active duty. The applicant's Certificate of Release or Discharge from Active Duty (DD Form 214) shows that he was discharged due to non-selection for permanent promotion.

On 1 February 2000, the applicant enlisted, as a staff sergeant with prior service, in order to complete 20 years of active service. In preparation of his 20-year retirement, it was determined that the applicant was not eligible for retirement as a captain. The applicant appealed this determination, requesting that he be considered as having been placed in the Dual Status Program and allowed to retire as a commissioned officer.

During the processing of this case an advisory opinion was obtained from the Army Reserve Personnel Command, Officer Personnel Management Directorate (OPMD). The director, OPMD, advised that the Dual Status Program had been closed since 6 September 1989. He further stated that for the applicant to retire as an officer he would have to meet the requirements of Title 10, United States Code (USC), §3911.

The applicant rebutted the advisory opinion, stating that he was misinformed as to his capability to retire as an officer when he enlisted in January 2000. He contends that he should not be penalized for the lack of experience and knowledge that led to his being misinformed. He states that he has already suffered a loss of prestige and income by having to revert to enlisted status to complete his 20 years of service.

Army Regulation 635-200 provides for the placement of enlisted soldiers on the retired list. Paragraph 12-3 of this regulation requires that the retirement of a soldier be in the pay grade he or she holds on the date of retirement.

Title 10 United States Code § 3964 provides, in pertinent part, that an enlisted member (emphasis added) of the Regular Army who is retired with less than 30 years of active service, is entitled when his active service plus 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 as determined by the Secretary of the Army. Section 3992 of Title 10 United States Code entitles an enlisted member of the Army, who is advanced on the retired list under section 3964, to a recomputation of his retired pay based on that advancement.

Army Regulation 135-155 states that an officer who twice fails to be selected for promotion to captain, major and lieutenant colonel will not again be considered for promotion and will be removed from an active status within 90 days after the selection board submits its results to Headquarters Department of the Army.

Title 10 USC §3911 states that the Secretary of the Army may, upon the officer's request, retire a regular or reserve commissioned officer who has at least 20 years of service, at least 10 of which have been active service as a commissioned officer.

Army Regulation 635-100 (Officer Personnel) provides policy and procedures for separation of officers. Paragraph 4-13 of this regulation states that a Regular or Reserve commissioned officer (emphasis added) of the Army who has at least 20 years of active Federal service, of which at least 10 years have been active service as a commissioned officer, may, on his or her application and in the discretion of the Secretary of the Army, be retired (10 USC 3911).

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, it is concluded:

1. The Board notes that the applicant was serving as a staff sergeant and not as a commissioned officer at the time of his retirement. As such he was not eligible to request retirement as an officer. It was and is proper that he be retired and carried on the Retired List in the enlisted grade he held at the time of his retirement.

2. There is no evidence that the applicant was improperly counseled at the time he reenlisted. As noted in the advisory opinion the Dual Status Program ended in 1989. The applicant could not and cannot be placed on the Dual Status List as the program ceased to exist eleven years prior to his discharge as a Reserve Officer and reentry in an enlisted status.

3. The Board notes the applicant’s contention that being placed on the Retired List, as a staff sergeant, has created a financial hardship. However, this Board cannot grant relief that is contrary to the law.

4. Under the laws and regulation currently in effect, the applicant cannot be considered for advancement on the Retired List until his active service plus service on the retired list totals 30 years. There is no legal or regulatory provision for placing the applicant on the Retired List, in a commissioned status, until he meets the combined 30-year requirement.

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.

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

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INDEX

CASE ID	AR2002073080
SUFFIX
RECON
DATE BOARDED	20030325
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	129.04
2.
3.
4.
5.
6.