RECORD OF PROCEEDINGS


         IN THE CASE OF:


         BOARD DATE: 02 DECEMBER 2003
         DOCKET NUMBER: AR2003090477


         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
Ms. Deborah L. Brantley		Senior Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. Melvin H. Meyer		Member
Mr. Patrick H. McGann, Jr.		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).

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THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests that he be advanced on the retired rolls to the grade of lieutenant colonel and paid accordingly.

2. The applicant states, in effect, that he had served on active duty as an enlisted Soldier and was commissioned as a second lieutenant and ordered to active duty in 1969 after completing OCS (Officer Candidate School). After approximately 4 years and a promotion to the grade of captain, he reverted to his former enlisted status following reduction in force but maintained his United States Army Reserve commission. He states that he was promoted to the grade of lieutenant colonel in the Unites States Army Reserve.

3. He stated that he ultimately retired from active duty in the grade of sergeant major in October 1989 and in February 1992 was advanced on the retired rolls to the grade of captain. However, he believes that he should have been advanced to the grade of lieutenant colonel and was told such by various individuals from the Department of Veterans Affairs and “different Army Finance & Accounting Offices.”

4. The applicant provides copies of orders promoting him to the grade of major and lieutenant colonel in the United States Army Reserve and copies of performance evaluation reports rendered on him in those grades.

CONSIDERATION OF EVIDENCE:

1. The applicant is requesting correction of an error which occurred in February 1992. The application submitted in this case is dated 5 December 2002.

2. Title 10, U.S. Code, Section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so. In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3. Records available to the Board indicate that the applicant entered active duty as an enlisted Soldier on 19 February 1962 and on 14 February 1969 he was discharged from active duty in order to accept a United States Army Reserve commission following completion of OCS.

4. The applicant was ordered to active duty as a United States Army Reserve second lieutenant on 15 February 1969. In 1971 he was promoted to the grade of captain and continued to serve in that grade until he was released from active duty on 30 June 1973 under a program designed to reduce the active duty officer strength.

5. The day following his involuntary release from active duty as a United States Army Reserve officer, the applicant reverted to his former enlisted status and remained on active duty. By September 1984 he had been promoted to the grade of sergeant major.

6. While serving on active duty as an enlisted Soldier, the applicant maintained his reserve commission, completing correspondence courses, and was promoted to major in 1980 and to lieutenant colonel in 1988. Although the applicant received periodic evaluation reports in his United States Army Reserve grade, under the provisions of Army Regulation 623-105, he never served on active duty as a major or lieutenant colonel and never received pay in either of those grades.

7. Army Regulation 600-39 (Dual Component Personnel Management Program) states that enlisted members holding United States Army Reserve commission are rated under Army Regulation 623-105.

8. Army Regulation 623-105 (Officer Evaluation Reporting System), in effect at the time, stated that when completing evaluation reports for a United States Army Reserve officer on active duty as a Regular Army enlisted member, part III will contain the enlisted principal duty title, enlisted specialty and enlisted job description. It stated that part IV (performance evaluation – professionalism) and part Va and Vb will be completed as they relate to the officer’s enlisted status and that part Vc should contain comments on specific aspects of performance in their enlisted status. Part Vd and Ve, which were associated with comments regarding the individual’s potential, were to be omitted.

9. The performance evaluation reports, provided by the applicant in support of his request, were completed in accordance with the provisions of Army Regulation 623-105. While the reports reflected his United States Army Reserve grade, the remaining elements of the reports reflected information, including his principal duty title, specialty and job description, associated with his Regular Army enlisted status.

10. The applicant continued to serve on active duty as an enlisted Soldier and received periodic evaluation reports in accordance with the provision of Army Regulation 623-105. On 30 September 1989 the applicant retired for length of service in the grade of sergeant major. His name was placed on the retired rolls in his enlisted status the following day. At the time of the applicant’s retirement he had 27 years, 7 months, and 13 days of continuous active Federal service.

11. On 18 February 1992, 30 years after the applicant’s initial entry on active duty, he was advanced on the retired list to the grade of captain “the highest active duty grade” he satisfactorily held.

12. Section 3964, title 10, United States Code states that enlisted members of the Regular Army who are 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 (emphasis added), as determined by the Secretary of the Army.

13. Army Regulation 15-80 (Army Grade Determination Review Board and Grade Determinations) establishes the policies and provisions for the Army Grade Determination Review Board to make final determinations on behalf of the Secretary of the Army in enlisted cases. That regulation further clarifies that provisions of Section 3964, title 10, United States Code, by stating that “Highest grade served on active duty” is the grade to which a soldier was actually promoted and paid pursuant to a lawful promotion.

DISCUSSION AND CONCLUSIONS:

1. The evidence shows that the highest commissioned grade the applicant served on active duty, and for which he received pay, was captain.

2. While the applicant may have received performance evaluation reports in his United States Army Reserve grades, those reports were rendered under the provisions of Army Regulations 600-39 and 623-105 for dual component personnel, and are not evidence that he served on active duty in the rated grade, or that he received pay in those grades.

3. The evidence shows that the applicant was appropriately advanced to the grade of captain in February 1992 when his active service plus his service on the retired list totaled 30 years.

4. Records show the applicant should have discovered the error or injustice now under consideration on 18 February 1992; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 18 February 1995. However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to file in this case.

BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

__FNE __ __MHM _ __PHM __ DENY APPLICATION

The Board determined that the evidence presented and the merits of this case are insufficient to warrant the relief requested, and therefore, it would not be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.




                  ____Fred N. Eichorn_______
                  CHAIRPERSON

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INDEX

CASE ID	AR2003090477
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20031202
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.00
2.
3.
4.
5.
6.