| Mr. Carl W. S. Chun | Director | |
| Mr. Joseph A. Adriance | Analyst |
| Mr. John N. Slone | Chairperson | ||
| Ms. Sherri V. Ward | Member | ||
| Mr. Melvin H. Meyer | Member |
APPLICANT REQUESTS: In effect, that he receive retired pay in the highest rank and pay grade he held, which is major/0-4 (MAJ/0-4).
APPLICANT STATES: In effect, he provides retirement orders and his MAJ/0-4 promotion orders in support of his request.
EVIDENCE OF RECORD: The applicant's military records show:
On 1 July 1990, he was released from active duty (REFRAD), by reason of reduction in force (RIF). At the time, the applicant held the rank and pay grade of captain/0-3 (CPT/0-3), which he had attained on 1 April 1983, and he had completed a total of 11 years, 2 months, and 19 days of active military service in a commissioned officer status.
On 2 July 1990, applicant entered in the Regular Army (RA) in an enlisted status and reentered active duty as a sergeant/E-5 (SGT/E-5). The record shows that while serving on active duty in an enlisted status, the applicant retained a dual commissioned officer status in the United States Army Reserve (USAR). On
27 March 1992, the applicant was promoted to MAJ/04 in the USAR. However, the record shows that he never held or served on active duty in this rank and pay grade.
On 7 July 1995, the applicant’s retirement was announced in Department of the Army (DA) Orders Number S129-9, issued by the US Total Army Personnel Command (PERSCOM), Alexandria, Virginia. These orders directed the applicant’s retirement from active service and his discharge from his enlisted status on 31 October 1995. It also directed his placement on the Retired List the following day, 1 November 1995, in the highest rank and pay grade he held and in which he satisfactorily served while on active duty, which was CPT/0-3.
The DD Form 214 issued to the applicant on the date of REFRAD, 31 October 1995, shows that he was separated under the provisions of chapter 12, Army Regulation 635-200, by reason length of service retirement.
Title 10 of the United States Code, section 1370 (10 USC 1370) provides the legal authority for retirement in the highest grade held satisfactorily for commissioned officers. It states, in pertinent part, that a commissioned officer who retires under any provision of law shall be retired in the highest grade in which they served on active duty satisfactorily, as determined by the Secretary of the military department concerned, for not less than six months.
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.
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 that he should receive retired pay in the highest rank and pay grade he held, which was MAJ/0-4. However, it finds insufficient evidence to support this claim.
2. By law, commissioned officers are placed on the Retired List in the highest commissioned officer rank and pay grade in which they satisfactorily served on active duty for not less than six months. Further, advancement of enlisted members to a commissioned officer rank and pay grade on the Retired List requires that the member actually held and satisfactorily served in that higher commissioned officer grade while on active duty. Dual status service in a higher commissioned officer rank and pay grade in the USAR, while serving on active duty in an enlisted status, does not meet the satisfactory service provisions of the law.
3. The evidence of record confirms that the applicant was discharged from his enlisted active duty status for the purpose of retirement in his commissioned officer status. It also verifies that he was placed on the Retired List in the highest commissioned officer rank and pay grade that he held, and in which he satisfactorily served while on active duty for not less than six months, which was CPT/0-3.
4. The evidence of record further shows that while serving on active duty in an enlisted status, the applicant was promoted to MAJ/0-4 in the USAR. However, it also confirms that he never actually held or served in that rank and pay grade while he was on active duty. Thus, the Board finds that the applicant’s service as a MAJ/0-4 does not meet the satisfactory service provisions of the law. Therefore, it concludes that the requested relief is not warranted in this case.
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
__JNS __ _ SVW _ __MHM__ DENY APPLICATION
| CASE ID | AR2002077765 |
| SUFFIX | |
| RECON | |
| DATE BOARDED | 2002/11/19 |
| TYPE OF DISCHARGE | HD |
| DATE OF DISCHARGE | 1995/10/31 |
| DISCHARGE AUTHORITY | AR 635-200 |
| DISCHARGE REASON | Retirement |
| BOARD DECISION | DENY |
| REVIEW AUTHORITY | |
| ISSUES 1. 319 | 139.0900 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
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