MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 31 October 2002
         DOCKET NUMBER: AR2002073811


         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. Joyce A. Wright		Analyst

The following members, a quorum, were present:

Mr. Curtis L. Greenway		Chairperson
Mr. Donald P. Hupman		Member
Ms. Regan K. Smith		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)

APPLICANT REQUESTS: Reconsideration of his earlier appeal to correct his military records to show that he was retired in the rank of major (MAJ/0-4) instead of captain (CPT/O-3).

APPLICANT STATES: In effect, that according to the Defense Officer Personnel Management Act (DOPMA) he did not have to serve on active duty as a major to be retired in that rank.

NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's previous consideration of the case AR1999029757 on 9 March 2000.

The applicant’s contentions are new arguments that require Board consideration.

The Board originally concluded that the applicant did not serve satisfactorily on active duty in the rank of major; therefore, he was only entitled to be advanced to captain upon completion of 30 years.

The applicant provided a letter to the Secretary of the Army (SA), dated 19 April 2002. In his letter he stated that the rational for denying his correction as stated in the ABCMR Memorandum of Consideration was not consistent with Section 634, of DOPMA – Technical Corrections Act (TCA) Publication (Pub) L Number (No) 97-22 95 Scattered (Sta) 124-138 (July 10, 1981). Section 634 of the TCA provided a saving provision to enable dual status active duty Army Reserve officers who retire after the effective date of DOPMA to keep their Reserve grade held on 14 September 1981, the day prior to DOPMA becoming effective. He stated that he had provided previous correspondence to the former President and SA, claiming that he was wrongfully retired from the military; however, no one answered his letters other than the Army Reserve Personnel Command (AR-PERSCOM). He requested assistance to override AR-PERSCOM's interpretation of his case that stated that he did not serve on active duty as a major; therefore, his retirement rank was captain.

Section 634 implicitly states that "a Reserve officer on active duty (as an officer or enlisted member) on 14 September 1981 and who later retires with more than 20 years active service, 10 of which was as a commissioned officer (Title 10, United States Code (USC) 3911), is entitled to retire in the Reserve grade he held or to which he had been selected for promotion on 14 September 1981 (even if he had not served in that grade on active duty). It should be noted that if such individual is promoted to a higher Reserve commissioned grade after 15 September 1981, the active duty requirements of Title 10, USC, as added by DOPMA, apply."



This provision substantiated his request for correction of his military records. The paragraph titled "Evidence of Record" in his prior case states that he served as a Reserve commissioned officer from 10 February 1967 to 26 September 1975, which is well over 10 years of commissioned service. It also indicates that he was promoted to major on 30 March 1979, and was honorably separated from active duty 30 November 1984. His commission in the Army Reserve was active until 30 November 1984 (the date that he was placed on the Retired List). Therefore, he did not have to serve on active duty as a major in order to retire as one.

He has enclosed a copy of a "Federal Court Suit" file of 5 May 1997, by a Reserve commissioned officer to substantiate his case. The Reserve commissioned officer's case was dismissed based on the fact that he forfeited his Reserve commission by accepting a Regular Army commission and the provisions of Act 634 did not apply to him. The Army's current interpretation of Section 634 was used as one of the factors for not granting the Reserve commissioned officer's request. He concludes by stating that he did not forfeit his Army Reserve commission, therefore, Section 634 does apply to his case.

The applicant was inducted into the Army of the United States (AUS) on 8 September 1958, and he continued to serve until 9 August 1960. He enlisted in the Regular Army on 10 August 1960, and was released on 9 February 1967, in the rank of SSG/E-6, in order to accept a commission as a Reserve officer.

He was appointed as a Reserve commissioned officer in the rank of second lieutenant on 10 February 1967. He was ordered to active duty on the same day. He continued to serve until he was released from active duty on 26 September 1975, in the rank of CPT/0-3. He had a total of 17 years and
19 days of creditable service.

He enlisted on 27 September 1975, in the pay grade of E-6.

On 20 March 1979, he was promoted to MAJ/0-4, in the Army Reserve, without being called to active duty in that grade.

He was promoted to master sergeant (MSG/E-8) effective 1 February 1982, with a date of rank (DOR) of 11 January 1982. He was placed on the Retired List effective 1 December 1984, in the rank of MSG/E-8.

He was advanced on the retired list to CPT/0-3, his highest grade satisfactorily held on active duty upon completion of 30 years of service.




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 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 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.

Army Regulation 15-185 sets forth the policy and procedures for the ABCMR. It provides that, if a request for a reconsideration is received within one year of the prior consideration and the case has not been previously reconsidered, it will be resubmitted to the Board if there is evidence (including but not limited to any facts or arguments as to why relief should be granted) that was not in the record at the time of the Board’s prior consideration. The staff of the Board is authorized to determine whether or not such evidence has been submitted.

The regulation provides further guidance for reconsideration requests that are received more than 1 year after the Board’s original consideration or after the Board has already reconsidered the case. In such cases, the staff of the Board will review the request to determine if substantial relevant evidence has been
submitted that shows fraud, mistake in law, mathematical miscalculation, manifest error, or if there exists substantial relevant new evidence discovered contemporaneously with or within a short time after the Board’s original decision. If the staff finds such evidence, the case will be resubmitted to the Board. If no such evidence is found, the application will be returned without action.

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 contention and evidence provided: however, the applicant completed 8 years, 7 months, and 17 days as a Reserve commissioned officer and not the 10 years required in accordance with Title 10, USC, Section 3911 for retirement in the highest grade held.

2. The evidence of record shows that he applicant was promoted to MAJ/0-4
on 20 March 1979, which was attained while 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 to MAJ/0-4.

3. The Board finds no evidence that the applicant served six consecutive months on active duty as a MAJ/0-4 to be eligible for advancement on the Retired List in accordance with statutory provisions. Therefore, the applicant is not entitled to be advanced to the rank and pay grade of MAJ/0-4.

4. The overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

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

__cg___ ___dh__ ___rs___ DENY APPLICATION



Carl W. S. Chun

Director, Army Board for Correction
         of Military Records


INDEX

CASE ID	AR2002073811
SUFFIX
RECON
DATE BOARDED	20021031
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	19841201
DISCHARGE AUTHORITY	Ar 635- 200
DISCHARGE REASON
BOARD DECISION
REVIEW AUTHORITY
ISSUES 1.	306
2.
3.
4.
5.
6.