RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        22 June 2006
      DOCKET NUMBER:  AR20050009862


      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. John J. Wendland, Jr.         |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. James B. Gunlicks             |     |Chairperson          |
|     |Mr. Larry J. Olson                |     |Member               |
|     |Ms. Peguine M. Taylor             |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that the date of his retirement be
changed from 31 August 2004 to 31 May 2001 and that he be retired in the
rank of captain (CPT)/pay grade O-3.

2.  The applicant states, in effect, that he was convicted by General Court-
Martial in the U.S. Army Military District of Washington (USA MDW) on 11
November 1999 and sentenced to confinement and dismissal from the service.
The General Court-Martial Convening Authority (GCMCA) subsequently
suspended the dismissal on the condition that the applicant would submit a
request for retirement to be effective not later than 1 December 2000, or
make a good faith effort to do so.  The applicant states, in effect, that
he immediately began the process of filing his retirement papers and after
several attempts was informed that regulations did not permit him to submit
retirement papers while incarcerated.  The applicant further states that he
was released from the U.S. Disciplinary Barracks (USDB), Fort Leavenworth,
Kansas, on 30 May 2001, took action to complete his physical examination
for retirement, and resubmitted his request for voluntary retirement on 30
October 2001.  The applicant states that he was then informed by officials
at Headquarters, U.S. Army Human Resources Command (USA HRC), Retirements
and Separations Section, that he could not retire until completion of his
appeals.  The applicant sought advice from his attorneys in the U.S. Army
Legal Services Agency (USALSA), Defense Appellate Division, and was told
that his appeal was expected to take a few months at most.  However, he
adds that the case was complex and the final action took approximately 3
years, during which time he remained in an active status while on unpaid
excess leave.  On 23 July 2003, the applicant's defense attorney at USALSA
submitted a formal request that the applicant's request for retirement be
processed in advance of the completion of his appeals.  In August 2004, a
decision was made to allow the applicant to retire prior to completion of
his appeals, a grade determination was accomplished, and he was separated
from active duty and placed on the retired list, effective 1 September
2004.  The applicant concludes by stating, in effect, that his retirement
date should be changed to 31 May 2001, the earliest date on which he was
eligible to retire, because he made every effort possible to comply with
the GCMCA's order, completion of his appeals was not a requirement for his
retirement, and this correction would be an enormous financial benefit to
his family, as they struggled for three years while waiting for the Army to
approve his retirement.

3.  The applicant also states, in effect, that his retired grade of E-7 was
determined by the Army Grade Determination Review Board (AGDRB) subsequent
to his court-martial conviction in November 1999.  He adds that the AGDRB
deemed that his service in the grade of chief warrant officer two (CW2)/
pay grade W-2 had not been satisfactory.  He also states that, since he
never officially held the grade of warrant officer one (WO1)/pay grade W-1,
and for the required six-month minimum period, the AGDRB determined he
should be retired as a sergeant first class (SFC)/pay grade E-7, the
highest grade satisfactorily held.  The applicant offers, in effect, that
the warrant officer retirement statute,
10 U.S.C. 1371, states that "a warrant officer retires…in the permanent
regular or reserve warrant officer grade…that he held on the day before the
day of his retirement."  If the service in that grade is deemed
unsatisfactory, his retirement grade is determined in the same manner as
other officers.  The applicant also cites Army Regulation 15-80, which he
states treats warrant officers under the procedures governing other
officers.  He also states that 10 U.S.C. 1370(a)(1) provides that an
officer is "retired in the highest grade in which he served on active duty
satisfactorily, as determined by the Secretary of the military department
concerned, for not less that six months."  The applicant adds that the
highest grade he actually held and served in was CPT/pay grade O-3 while
serving in the U.S. Air Force (USAF) and states this Army regulatory
guidance precisely applies to warrant officers.  He adds that his
circumstances are not typical in that his previous service in pay grade O-3
was more than 6 months, his service was satisfactory at that grade, and he
received an honorable discharge for his service in the USAF.  Therefore,
the applicant concludes, since his service was satisfactory at that grade,
he should be retired in the rank of CPT/pay grade O-3.

4.  The applicant submitted two DD Forms 149 (Application for Correction of
Military Record Under the Provisions of Title 10, U.S. Code, Section 1552),
dated 30 June 2005 and 4 August 2005, which have been consolidated for the
purposes of this Record of Proceedings.  Along with his two applications,
the applicant also provides 2 self-authored statements, dated 29 July 2005
and
4 August 2005; Memorandum, USA MDW, Fort Lesley J. McNair, DC, 24 May 2000,
subject:  Conditions of Suspension; five USDB Forms 96 (Inmate Request
Slip), dated 2 June 2000, 20 June 2000, 30 June 2000, 20 July 2000, and
17 August 2000; Memorandum, USDB, Fort Leavenworth, Kansas, undated,
subject:  Voluntary Retirement - CW2 [Applicant's Name and Social Security
Number]; USDB, Combined Arms Center and Fort Leavenworth, Fort Leavenworth,
Kansas, Order 150-02, dated 30 May 2001; Memorandum, USDB, Fort
Leavenworth, Kansas, 30 October 2001, subject:  Voluntary Retirement - CW2
[Applicant's Name and Social Security Number]; Letter, USALSA, Defense
Appellate Division, Arlington, Virginia, 23 July 2003; Memorandum, USA HRC,
Alexandria, Virginia, undated, subject:  Voluntary Retirement;
Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort Sill,
Oklahoma, Orders 244-0127, dated 31 August 2004; two (2) DD Forms 214
(Certificate of Release or Discharge from Active Duty), with effective
dates of 31 August 2004 and
8 November 1989; and U.S. Army Intelligence and Security Command, Fort
Belvoir, Virginia, Statement of Service, dated 8 December 1997.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military service records show he enlisted in the
Regular Army (RA) on 27 June 1966, transferred to the United States Army
Reserve (USAR) on 16 May 1970, attained the rank of sergeant (SGT)/pay
grade E-5, and served honorably until he enlisted in the USAF on 22
February 1978 for the purpose of attending Officer Training School.  The
applicant then served on active duty in the USAF as a Human Resources
Intelligence Officer, attained the rank of CPT/pay grade O-3, with an
effective date of 18 May 1982, and was honorably discharged on 8 November
1989 after completing a total of 11 years, 5 months, and 21 days active
service in the USAF.  On 5 December 1997, he was accessed into the Active
Army as a warrant officer in the USAR as an Area Intelligence Technician,
pending a date of rank (DOR) determination.  U.S. Total Army Personnel
Command, Alexandria, Virginia, determined his WO1 DOR to be 2 October 1989;
therefore, he was eligible for promotion to CW2, effective
5 December 1997.  In response to an application to the Army Board for
Correction of Military Records (ABCMR), this Board corrected the
applicant's records to show that he was promoted to CW2 with a DOR and
effective date of 5 December 1997.

2.  USA MDW, Washington, DC, General Court-Martial Order Number 5, dated 24
May 2000, shows that the applicant was arraigned at Fort Lesley J. McNair,
Washington, DC, at a general court-martial convened by the Commander, USA
MDW, Washington, DC.  This document also shows that the applicant was found
guilty of four specifications of Article 133 (Conduct Unbecoming an Officer
and Gentleman) and eight specifications of Article 134 (General Article).
On
11 November 1999, he was sentenced to be confined for 30 months and to be
dismissed from the service.  The GCMCA approved the sentence and ordered it
to be executed, except for that part of the sentence extending to
dismissal.  The GCMCA also directed that execution of that part of the
sentence extending to dismissal was suspended for two years, at which time,
unless the suspension was sooner vacated, the suspended part of the
sentence would be remitted without further action.

3.  The conditions of the suspension were set forth in Memorandum, USA MDW,
Fort Lesley J. McNair, Washington, DC, 24 May 2000, subject:  Conditions of
Suspension.  This document provides, in pertinent part, "[y]our unexecuted
sentence to dismissal will be automatically remitted at the end of this two
year probationary period, without further action, provided that: (a) not
later than
1 September 2000, you submit a request for retirement from active duty,
along with a request for any necessary waiver (such as waiver of any
remaining active duty service obligation), specifying that you be placed on
the retired list not later than 1 December 2000; (b) you make a good faith
effort to obtain approval of the above-mentioned request(s) and do not
withdraw them at any time after their submission in proper form; and (c)
you do not violate any punitive article of the Uniform Code of Military
Justice during the period of suspension."  This document is signed by the
major general in command of USA MDW and the applicant affixed his signature
to the document on 2 June 2000.

4.  The applicant's military service records contain a copy of Memorandum,
USA HRC, Alexandria, Virginia, 10 May 2004, subject:  Grade Determination
for Retirement - Action Memorandum.  This document shows, in pertinent
part, that a grade determination request for the applicant was originally
sent to the AGDRB on 14 January 2002, but was returned without action on 16
January 2002 because the applicant's conviction was pending appellate
review.  This document also references Memorandum, Office of The Judge
Advocate General (OTJAG), Washington, DC, 19 April 2004.

5.  The applicant's military service records contain a copy of Memorandum,
OTJAG, Washington, DC, 19 April 2004, subject: Request for Legal Opinion on
Convening Army Grade Determination Review Board Pending Appellate Review of
General Court-Martial Conviction [Applicant's Rank and Name].  This
document shows, in pertinent part, that the OTJAG opined that "[The
applicant's] retirement request may now be forwarded through the [AGDRB] to
the Assistant Secretary of the Army (Manpower and Reserve Affairs (ASA
(M&RA)) for a determination of the highest grade at which [the applicant]
served satisfactorily."  This document also shows that "[t]here is no legal
objection to the ASA (M&RA) making a determination of the highest grade at
which [the applicant] served satisfactorily and then approving [the
applicant's] retirement while this case is pending appellate review."  This
document further adds, in pertinent part, "[a]ccordingly, retiring [the
applicant] does not terminate court-martial jurisdiction over [the
applicant's] pending appellate review, and the ASA (M&RA) may determine the
highest grade in which [the applicant] served and approve [the applicant's]
retirement."

6.  The applicant's military service records contain a copy of a memorandum
from the applicant, dated 21 June 2004, subject:  Army Grade Determination
Board.  This document shows, in pertinent part, that the applicant
submitted a request to the AGDRB and asked that Board to consider his
entire record of service in making his grade determination, including his
service as a CW2 in the U.S. Army and his many years of honorable service
as a CPT in the USAF.

7.  The applicant's military service records contain a copy of Memorandum,
Office of the ASA (M&RA), Arlington, Virginia, 20 July 2004, subject:
Officer Grade Determination Case [Applicant's Name, Social Security
Number], CW2, MI, USAR.  This document shows, in pertinent part, that the
Board reviewed the voluntary retirement submitted by the applicant and the
request for a grade determination by USA HRC, Officer Retirements and
Separations Section, and the Deputy Assistant Secretary (Army Review
Boards) (DASA (RB)) directed that the applicant be retired in the enlisted
grade of E-7, if the retirement was approved.

8.  The applicant's military service records contain a copy of
Headquarters, U.S. Army Field Artillery Center and Fort Sill, Fort Sill,
Oklahoma, Orders 244-0127, dated 31 August 2004.  This document shows, in
pertinent part, the applicant was retired from the Army, effective 31
August 2004, and placed on the retired list in the grade of rank of SFC/pay
grade E-7 on 1 September 2004.

9.  The applicant's military service records contain a copy of U.S. Army
Combined Arms Center and Fort Leavenworth, USDB, Fort Leavenworth, Kansas,
General Court-Martial Order Number 8, dated 26 April 2005.  This document
shows that Specifications 7 and 8 of Charge II were set aside and dismissed
and the remaining findings of guilty were affirmed.  The court affirmed
only so much of the sentence as provided for a dismissal (that portion of
the sentence pertaining to dismissal was suspended for two years with
provisions to be automatically remitted) and confinement for 27 months,
adjudged on
11 November 1999, as promulgated in USA MDW, Washington, DC, General Court-
Martial Order Number 5, dated 24 May 2000.  The dismissal was remitted in
accordance with the terms of the convening authority's initial action of 24
May 2000.  The GCMCA waived the automatic forfeitures from 3 December 1999
until 3 June 2000 and directed that they be paid to the applicant's spouse
to support the applicant's dependents.

10.  In support of his applications, the applicant provides 2 self-authored
statements, a memorandum from the GCMCA (i.e., Commanding General, USA
MDW), 5 USDB Forms 96, 2 requests for voluntary retirement, a letter from
his defense counsel, a memorandum approving his retirement, 2 orders
relating to his travel at Government expense and his release from active
duty and retirement, and a DD Form 214.  These documents offer information
and evidence regarding the circumstances and timeline with respect to the
processing of the applicant's requests for retirement, his retired grade
determination, and the effective date of his retirement.  The applicant
also provides a statement of service and another DD Form 214 that, in
pertinent part, offer information regarding his honorable service in the
rank of CPT/pay grade
O-3 in the USAF.

11.  Title 10, U.S. Code, Chapter 47 (Uniform Code of Military Justice
(UCMJ)), Article 133, provides that any commissioned officer, cadet, or
midshipman who is convicted of conduct unbecoming an officer and a
gentleman shall be punished as a court-martial may direct.  Article 134 of
the UCMJ provides that, though not specifically mentioned in Chapter 47 of
Title 10, U.S. Code, all disorders and neglects to the prejudice of good
order and discipline in the armed forces, all conduct of a nature to bring
discredit upon the armed forces, and crimes and offenses not capital, of
which persons subject to this chapter may be guilty, shall be taken
cognizance of by a general, special, or summary court-martial, according to
the nature and degree of the offense, and shall be punished at the
discretion of that court.

12.  Army Regulation 600-8-2  (Suspension of Favorable Personnel Actions
(Flags)) provides the U.S. Army policy guidance and procedures to operate a
system to guard against the accidental execution of specified favorable
personnel actions for Soldiers not in good standing.  Paragraph 1-12
(Circumstances requiring a non-transferable flag) (i.e., the flag may not
be transferred to another unit, except where consistent with paragraph 1-
15) provides the specific actions and investigations that require a non-
transferable flag, which include, in pertinent part:  (1) charges,
restraint, or investigation (remove the flag when Soldier is released
without charges, charges are dropped, or punishment is completed); and (2)
court-martial (remove the flag upon completion of punishment, to include
any term of suspension).

13.   Paragraph 1-15 (Processing exceptions) of Army Regulation 600-8-2
provides, in pertinent part, for advance or excess leave and states that
the GCMCA may direct excess leave to Soldiers sentenced by court-martial to
dismissal or a punitive discharge when the sentence has not yet been
approved; the GCMCA or designee may grant an indefinite period of excess
leave to Soldiers awaiting administrative discharge in accordance with AR
600-8-10; and commanders may grant advance or excess leave when emergencies
exist.  This Army regulation also provides, in pertinent part, for
unqualified resignation, discharge, or retirement and states that flagged
Soldiers may submit requests for consideration by Headquarters, Department
of the Army (i.e., USA HRC).

14.  Army Regulation 600-8-24 (Officer Transfers and Discharges), in effect
at the time of the applicant's confinement and retirement, provides, in
pertinent part, rules for processing a voluntary retirement application.
This Army regulation states that a request for voluntary retirement will be
prepared and forwarded to the appropriate approval authority not earlier
than 12 months before the retirement date or no later than 4 months before
the requested retirement date.  It also provides, in pertinent part, that a
request may be submitted with justification later than 4 months to preclude
a hardship to the officer.

15.  Army Regulation 40-501 (Standards of Medical Fitness), paragraph 8-23
(Separation and Retirement Examinations), provides that voluntary requests
for medical examinations should be submitted to the commander of the
servicing Medical Treatment Facility not earlier than 4 months, nor later
than 1 month, prior to the anticipated date of separation or retirement
(or, if applicable and requested by the Soldier, 4 months prior to
transition leave).

16.  Title 10, United States Code, Section 1371 (Warrant officers:  general
rule), provides that unless entitled to a higher retired grade under some
other provision of law, a warrant officer retires, as determined by the
Secretary concerned, in the permanent regular or reserve warrant officer
grade, if any, that he held on the day before the date of his retirement,
or in any higher warrant officer grade in which he served on active duty
satisfactorily, as determined by the Secretary, for a period of more than
30 days.

17.  Title 10, United States Code, Section 1370 (Commissioned officers:
general rule; exceptions), provides the rules for retirement in the highest
grade held satisfactorily and states, in pertinent part, that unless
entitled to a higher retired grade under some other provision of law, a
commissioned officer (other than a commissioned warrant officer) (emphasis
added) of the Army, Navy, Air Force, or Marine Corps who retires under any
provision of law other than chapter 61 or chapter 1223 of this title shall
be retired in the highest grade in which he served on active duty
satisfactorily, as determined by the Secretary of the military department
concerned, for not less than six months.

18.  Title 10, United States Code, Chapter 367 (Retirement for Length of
Service), Section 3911 (Twenty years or more:  regular or reserve
commissioned officers), provides that the Secretary of the Army may, upon
the officer's request, retire a regular or reserve commissioned officer of
the Army (emphasis added) who has at least 20 years of service computed
under section 3926 of this title, at least 10 years of which have been
active service as a commissioned officer.  This section also provides that
the Secretary of Defense may authorize the Secretary of the Army, during
the period beginning on October 1, 1990, and ending on December 31, 2001,
to reduce the requirement for at least 10 years of active service as a
commissioned officer to a period (determined by the Secretary of the Army)
of not less than eight years.

19.  Title 10, United States Code, Section 3964 (Higher grade after 30
years of service:  warrant officers and enlisted members), provides, in
pertinent part, that each retired member of the Army covered 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 (or, in the case of a member of the National
Guard, in which he served on full-time duty satisfactorily), as determined
by the Secretary of the Army.  This section applies to Army warrant
officers; regular enlisted members; and reserve enlisted members of the
Army who, at the time of retirement, are serving on active duty (or, in the
case of members of the National Guard, on full-time National Guard duty).

20.  Army Regulation 15-80 (Army Grade Determination Review Board and Grade
Determinations) establishes policies, procedures, and responsibilities of
the AGDRB and other organizations delegated authority to make grade
determinations on behalf of the Secretary of the Army.  Chapter 4 (Officer
Personnel Grade Determinations), paragraph 4-1 (General), provides, in
pertinent part, that all retirements, except for disability separations,
involving officers who, since their last promotion, have been the subject
of any substantiated adverse finding or conclusion from an officially
documented investigation, proceeding, or inquiry (except minor traffic
infractions) will be forwarded to ASA (M&RA) for a grade determination,
provided such information is reflected, or should be reflected by
regulation, in the officer's Official Military Personnel File (OMPF).  This
document provides examples of such findings or conclusions which include,
but are not limited to, a memorandum of reprimand; nonjudicial punishment
under the UCMJ, Article 15; court-martial or civilian conviction.  Even if
the information described above is not required to be filed in the
officer's OMPF, the separation authority may forward any retirement that
contains information deemed substantiated, adverse, and material to
determination of retired grade.

21.  Paragraph 4-2 (Warrant Officers) of Army Regulation 15-80 provides
that warrant officer cases will be processed as follows:  For advancement
to a higher grade after 30 years of service, cases will be administered in
the manner set forth for enlisted Soldiers in paragraph 3-2 of this Army
regulation.  This paragraph also states that unless entitled to a higher
grade under some other provision of law, a warrant officer retires in the
permanent or reserve warrant officer grade, if any, that he or she held on
the day before the date of his or her retirement and provides that all
other cases will be administered in the manner set forth for other officers
in Title 10, United States Code, Section 1371.

22.  Paragraph 2-6 (Service in Lower Grade) of Army Regulation 15-80
provides, if service in the highest grade held was unsatisfactory, the
Soldier can be deemed to have served satisfactorily in the next lower grade
actually held, unless paragraph 2-5 applies.  Paragraph 2-5 (Unsatisfactory
Service) of this Army regulation provides, in pertinent part, that service
in the highest grade or an intermediate grade normally will be considered
to have been unsatisfactory when there is sufficient unfavorable
information to establish that the Soldier's service in the grade in
question was unsatisfactory.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that the date of his retirement
should be changed from 31 August 2004 to 31 May 2001 and that he should be
retired in the rank of CPT/pay grade O-3.  In his request to this Board,
the applicant maintains that the GCMCA suspended his dismissal as an act of
clemency and that the conditions of the suspension were that he must apply
for retirement, make a good faith effort to obtain approval of his request,
and refrain from violating the UCMJ, which he did.  The applicant contends,
in effect, that he immediately began the process of filing his retirement
papers and after several attempts was informed that regulations did not
permit him to submit retirement papers while incarcerated.  After being
released, he resubmitted his retirement papers, but at that time was told
he could not retire until his appeal was finished, unless he waived his
appellate rights.  He asserts that had the GCMCA intended for him to waive
his appellate rights, the GCMCA would have included that as a term of the
suspension.  He further asserts that he never received any definitive
answer on why he could not receive retired pay during his military appeal
and, even after he had served his sentence to confinement, Army officials
still failed to process his requests for voluntary retirement.  He now
looks to this Board for relief.

2.  The evidence of record shows that the applicant was convicted by a
general court-martial and was sentenced to confinement and to be dismissed
from the service.  The evidence of record also shows that the GCMCA
approved the sentence and ordered it to be executed, except for that part
extending to dismissal.  The GCMCA also directed that execution of that
part of the sentence extending to dismissal be suspended for two years, at
which time, unless the suspension was sooner vacated, the suspended part of
the sentence would be remitted without further action.  As conditions for
the unexecuted sentence to dismissal to be automatically remitted at the
end of the two-year probationary period, the GCMCA further directed that
the applicant submit a request for retirement not later than 1 September
2000, along with a request for any necessary waiver, specifying he be
placed on the retired list not later than
1 December 2000.

3.  The evidence of record shows that while in confinement and prior to
1 September 2000, the applicant initiated no less than five
inquiries/requests pertaining to his voluntary retirement processing and,
on 17 August 2000, submitted his request for voluntary retirement to be
effective 1 December 2000 (or as soon thereafter as practicable).  The
evidence of record also shows that on
30 October 2001, the applicant submitted a second request for voluntary
retirement to be effective 4 January 2002 (or as soon thereafter as
practicable).

4.  The evidence of record shows that the applicant's voluntary requests
for retirement were returned without action because his case was pending
appellate court action and he was told his request could not be processed
until after the appellate review was completed or the applicant waived his
appellate review through his appellate defense counsel.

5.  The evidence of record shows that the applicant was released from
confinement on 30 May 2001; placed in an excess leave status, where he
remained until he was released from active duty on 31 August 2004; and was
placed on the retired list, effective 1 September 2004.

6.  The evidence of record shows that the applicant became eligible to
retire the day after his release from confinement (i.e., 31 May 2001) and
that he made a good faith effort to request and obtain approval of his
voluntary retirement in accordance with the conditions of suspension set
forth by the GCMCA.  The evidence of record also shows that while the
applicant was incarcerated and afterwards while he was in an excess leave
status, U.S. Army officials mistakenly opined that the applicant was
ineligible to apply for voluntary retirement until his appeal was
completed.  Consequently, U.S. Army officials failed to take the required
action to act on and approve the applicant's request for voluntary
retirement, as authorized by Army regulatory guidance in effect at the time
and in accordance with the GCMCA's directive, for a date subsequent to his
release from confinement.

7.  The evidence of record shows that a voluntary request for retirement
must be submitted no later than 4 months before the requested retirement
date; however, it may be submitted with justification later than 4 months
to preclude a hardship to the officer.  The evidence of record also shows
that voluntary requests for medical examinations should be submitted to the
commander of the servicing Medical Treatment Facility not earlier than 4
months, nor later than 1 month, prior to the anticipated date of separation
or retirement (or, if applicable and requested by the Soldier, 4 months
prior to transition leave).

8.  Based on the evidence of record and all of the foregoing, the
applicant's request for correction of his retirement date merits favorable
consideration.  However, in order to establish a retirement date that is
fair to both the applicant and the U.S. Army, a reasonable amount of time
to accomplish the voluntary retirement process must be added to the date
that the applicant was released from confinement (i.e., 30 May 2001) in
considering equitable relief in this case.  The reasonable amount of time
must take into account time required for the U.S. Army to act on the
applicant's request and for the applicant to accomplish the administrative
and medical regulatory requirements related to the voluntary retirement
process.  Consequently, in view of the good faith effort made by the
applicant to request his voluntary retirement, a one-month processing
period beginning 31 May 2001 is deemed reasonable in this case.  Therefore,
the applicant is entitled to correction of his records to show that he was
released from active duty on 30 June 2001 and placed on the retired list,
effective 1 July 2001.

9.  The evidence of record shows that the applicant was serving as a
CW2/pay grade W-2 when he was convicted by a general court-martial and
sentenced to confinement.  Therefore, he did not serve on active duty
satisfactorily in that grade, as determined by the DASA (RB), on behalf of
the ASA (M&RA), and is not entitled to retire in the rank of CW2/pay grade
W-2.

10.  The evidence of record shows that the applicant never officially held
the rank of WO1/pay grade W-1.  He also did not serve at that rank for at
least 6 months, as required.  Therefore, since he did not serve on active
duty satisfactorily in that grade, for six months or more, he is not
entitled to retire in the rank of WO1/pay grade W-1.

11.  The evidence of record shows that the applicant completed over 11
years and 5 months of honorable active service as a commissioned officer in
the USAF, attaining the rank of CPT/pay grade O-3; therefore, the applicant
contends he should be retired in the rank of CPT/pay grade O-3.  However,
retiring the applicant at a higher rank than the rank the AGDRB had
determined was unsatisfactory service for retirement purposes would clearly
defeat the entire intent of Army Regulation 15-80.  That is, the intent of
this regulation is that a Soldier should retire at the next lower grade in
which he or she in fact served satisfactorily, not the next higher grade.
To do otherwise would provide an incongruous benefit and enormous windfall
to such a Soldier.  Furthermore, if the applicant had committed no
misconduct and had retired in the usual manner, he would have been retired
as a CW2/pay grade W-2 as a matter of course, not as a CPT/pay grade O-3.

12.  The evidence of record also shows that the Secretary of the Army or
his designee determines the appropriate Army retirement grade for each
Soldier--- not the Secretary of the Air Force, as the applicant claims in
his case.  "An officer is not automatically entitled to retire in the
highest grade served on active duty.  Instead, an officer is retired in the
highest grade served on active duty satisfactorily, as determined by the SA
[Secretary of the Army] or the Secretary's designee [the DASA (RB)]
(emphasis added).  (See Army Regulation 15-80, dated 12 July 2002,
paragraph 4-1a.  This was the edition of the regulation in effect at the
time of the applicant's grade determination in 2004.)  In the applicant's
specific case, the DASA (RB) in fact decided that SFC/E-7 was the
appropriate retirement rank and grade for him.  Moreover, paragraph 4-1b
provides "[e]xcept as noted below [referring to 30 year cases and physical
disability cases---situations not relevant to this analysis], officer grade
determinations will result in either a decision to retain the individual's
current grade as the retired grade or change the retired grade to a grade
lower than that currently held." (emphasis added).  Thus, when the AGDRB
determined that the applicant had not satisfactorily served in the rank and
grade of CW2/W-2, which was his then current grade, the regulatory
direction was that the AGDRB must go to the next lower grade satisfactorily
held, which was SFC/E-7.  In view of the above, the ADGRB's recommendation
and the DASA (RB)'s final decision in this matter were proper.

13.  It is noted that the applicant offers his Air Force DD Form 214 as
proof of his honorable service for that period.  However, a DD Form 214 is
not conclusive proof for this allegation.  Rather a determination by the
Air Force's equivalent to the AGDRB would constitute conclusive proof that
this period of his military service was honorable (meaning satisfactory for
retirement purposes).  The Air Force of course did not conduct such a grade
determination in the applicant's case, since he was not eligible for and
did not apply for retirement at the time he separated as a CPT.  In any
case, even if the applicant was to present sufficient proof that his
service as an Air Force CPT had been satisfactory, paragraph 4-1 of Army
Regulation 15-80 would still require that he be retired as a SFC.

14.  In this regard, the evidence of record shows that the AGDRB considered
the applicant's previous service on active duty as a CPT in the USAF when
it made its grade determination that the applicant be retired in the
enlisted rank of SFC/pay grade E-7.  In addition, the evidence of record
also shows that the AGDRB made special note that when the applicant reaches
his 30-year point, he will be eligible to ask the AGDRB to advance him on
the retired list to the grade of O-3.  Therefore, in view of all of the
foregoing, the applicant is not entitled to retire in the rank of CPT/pay
grade O-3 at this time.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

__JBG__   __LJO___  __PMT__  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief.  As a result, the Board
recommends that all Department of the Army records of the individual
concerned be corrected by:

      a.   showing the applicant was released from active duty for the
purpose of retirement on 30 June 2001 and placed on the retired list,
effective 1 July 2001; and

      b.  that as a result of the foregoing correction, the Defense Finance
and Accounting Service shall remit as payment to the applicant all retired
pay due as a result of this correction.

2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
the applicant's request for retirement on 31 May 2001 and that he be
retired in the rank of captain (CPT)/pay grade O-3.




                                  ____James B. Gunlicks_____
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050009862                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060622                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |20040831                                |
|DISCHARGE AUTHORITY     |AR 600-8-24, Paragraph 6-20             |
|DISCHARGE REASON        |Voluntary Retirement                    |
|BOARD DECISION          |GRANT PARTIAL                           |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |129.0400.0000                           |
|2.                      |136.0100.0000                           |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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