PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 29 October 2002
         DOCKET NUMBER: AR2002077360


         I certify that hereinafter is recorded the true and complete record of the proceedings 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. Karol A. Kennedy		Chairperson
Mr. Thomas A. Pagan		Member
Ms. Barbara J. Lutz		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests, in effect, reconsideration of his previous application to correct his military records by changing his retired rank and pay grade to lieutenant colonel/0-5 (LTC/0-5) or major/0-4 (MAJ/0-4).

3. The applicant states, in effect, that the Board denied his request based on an incorrect review of his military records. He claims that the evidence he submitted clearly supported his case to be retired as a LTC/0-5 or MAJ/0-4. He states that he was promoted to LTC/0-5 on 4 September 1987, with a date of rank of
14 September 1985, and that he was on active duty from June 1983 to
31 August 1989. He also states that he served on active duty as a MAJ/0-4 from 8 September 1980 to 20 June 1981, a total of 284 days, which exceeds the statutory requirement.

4. The Memorandum of Consideration (MOC) of the Board’s 12 April 2000 review of the case (AR1999031587) is incorporated herein by reference as if wholly set forth. The applicant’s submission is new evidence and/or argument that requires Board consideration.

5. The evidence of record shows that the applicant served in the United States Navy from 13 August 1958 through 10 August 1962, and in the Navy Reserve from 11 August 1962 through 16 July 1964. Between 17 July 1964 and
20 November 1965, he enlisted and served in both the Army National Guard (ARNG) and United States Army Reserve (USAR).

6. On 10 August 1966, he enlisted in the Regular Army, and on 8 February 1969, he was commissioned out of Officer Candidate School, and entered active duty on 8 February 1969. On 15 December 1972, he was released from active duty as a captain/0-3 (CPT/0-3).

7. The applicant served in the ARNG and USAR as a commissioned officer from 16 December 1972 through 7 June 1983. During this period, he served on active duty as a MAJ/0-4 from 8 September 1980 through 21 June 1981.

8. On 7 June 1983, the applicant entered active duty in the Regular Army in an enlisted status, while retaining a dual status as a commissioned officer in the USAR, not on active duty. While in this dual status, he was promoted to LTC in the USAR on 4 September 1987, with a date of rank of 14 September 1985. He continued to serve on active duty in an enlisted status, and the record contains no indication that he ever served on active duty as a LTC/0-5 while he remained in this dual status.

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9. On 31 August 1989, he was released from active duty (REFRAD), for the purpose of retirement, after completing a total of 20 years, 2 months, and
29 days of active military service. At the time of his REFRAD, he held the rank and pay grade of staff sergeant/E-6 (SSG/E-6). On 1 September 1989, he was placed on the Retired List in that rank and pay grade.

10. On 21 January 1999, the Army Reserve Personnel Command (ARPERSCOM) advanced the applicant to the rank and pay grade of CPT/0-3
on the Retired List, effective 3 June 1999, the date his active duty service and time on the Retired List equaled 30 years.

11. On 25 February 1999, ARPERSCOM denied the applicant’s request for advancement to the rank and pay grade of MAJ/0-4 on the Retired List. The ARPERSCOM denial stated that the law did not allow for advancement of dual status soldiers who held a Reserve commission while serving on active duty in an enlisted status. In addition, it indicated that the applicant’s active duty service as a MAJ/0-4 did not satisfy the provisions of the advancement law. Therefore, his request for advancement to MAJ/0-4 on the Retired List was denied.

12. The Board in its original consideration of this case found that the applicant was not eligible for advancement to LTC/0-5 on the Retired List because he never satisfactorily served on active duty in that rank and pay grade. Relying on this ARPERSCOM position, the Board also concluded that the applicant was not eligible to be advanced to MAJ/0-4 on the Retired List because his active duty service in that rank and pay grade did not satisfy the provisions of Title 10 of the United States Code, section 3964.

13. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 12 sets policies and procedures for voluntary retirement of soldiers because of length of service. Paragraph 12-3b states, in pertinent part, that retirement will be in the regular or reserve grade the soldier holds on the date of retirement as directed in Title 10 of the United States Code, section 3961.

14. Paragraph 12-6 (Advancement on the Retired List) of the regulation contains guidance on the advancement of enlisted soldiers on the Retired List. It indicates that advancement on the Retired List is limited to retired soldiers who held a higher grade and successfully served in that higher grade while on active duty. There are no provisions of law or regulation that provide for the advancement of an enlisted member who served in a dual status, as a USAR commissioned officer not on active duty and in a Regular Army enlisted status on active duty.

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15. Title 10 of the Untied States Code, section 3911 provides the legal authority for the retirement of regular or reserve commissioned officers after twenty years or more of active military service, at least 10 of which must have been active service as a commissioned officer.

16. Title 10 of the United States Code, section 1370 provides the legal authority for retirement in the highest grade held satisfactorily for commissioned officers. It states, in pertinent part, that retiring commissioned officers will be retired in the highest grade in which they served on active duty satisfactorily for not less than six months, for those in a rank and pay grade of MAJ/0-4 or below, and not less than three years for those in a rank and pay grade above MAJ/0-4.

17. Title 10 of the United States Code, section 3964 provides the legal authority for advancement of warrant officers and enlisted members on the Retired List. It states, in pertinent part, that warrant officer and enlisted members of the Army are entitled, when their active service plus their service on the retired list totals
30 years, to be advanced on the Retired List to the highest grade in which they served on active duty satisfactorily.

CONCLUSIONS:

1. The Board notes the applicant’s contentions that the evidence of record supports his request to be retired as a LTC/0-5 or MAJ/0-4 and that the Board’s original denial was based on an incorrect review of his military records, and it finds partial merit in these claims.

2. The evidence of record confirms that the applicant did not complete 10 years of active duty service as a commissioned officer, as is required by law, in order to be retired in a commissioned officer status. Therefore, the Board concurs with the original determination that the applicant was not eligible to be retired as a commissioned officer as either a LTC/0-5 or a MAJ/0-4.

3. The record further shows that the applicant was promoted to LTC/0-5 in the USAR, while serving on active duty in an enlisted status. It also verifies that he never served on active duty as a LTC/0-5. As a result, this Board concurs with the original determination that the applicant failed to meet the satisfactory service requirements necessary to be advanced to LTC/0-5 on the Retired List.

4. However, the evidence of record also confirms that the applicant served on active duty as a MAJ/0-4 from 8 September 1980 through 21 June 1981, which was well over the 6 months necessary to meet the satisfactory active duty service provisions of the law necessary to qualify for advancement to MAJ/0-4 on the Retired List.

5. In its original deliberations on this case, the Board accepted the ARPERSCOM determination that the applicant’s active duty service as a
MAJ/0-4 did not meet the satisfactory active duty service provision of the advancement law, and it incorrectly concluded that the applicant should not be advanced to MAJ/0-4 on the Retired List.

6. However, during this further review of the case, the Board finds no provisions of the advancement law that would result in the applicant’s active duty service as a MAJ/0-4 not meeting the satisfactory service criteria necessary for advancement. Therefore, the Board concludes that it would be appropriate to advance the applicant to the rank and pay grade of MAJ/0-4 on the Retired List, effective 3 June 1999, and to provide him any back pay and allowances due as a result.

7. In view of the foregoing findings and conclusions, correcting the applicant’s records as recommended below would correct an error.

RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected by showing that the individual concerned was advanced to the rank and pay grade of Major/0-4 on the Retired List, effective 3 June 1999; and by providing him any back pay and allowances due as a result.

2. That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:

__KAK__ __TAP__ __BJL__ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ___Karol A. Kennedy___
                  CHAIRPERSON

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INDEX

CASE ID	AR2002077360
SUFFIX
RECON	AR1999031587
DATE BOARDED	2002/10/29
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	1989/08/31
DISCHARGE AUTHORITY	AR 635-200 C12
DISCHARGE REASON	Retirement
BOARD DECISION	PARTIAL RELIEF
REVIEW AUTHORITY
ISSUES 1. 306	129.0400
2. 319	131.0900
3.
4.
5.
6.