RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        11 July 2006
      DOCKET NUMBER:  AR20050011178


      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. Joyce A. Wright               |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John Slone                    |     |Chairperson          |
|     |Ms. Carmen Duncan                 |     |Member               |
|     |Ms. Jeanette McCants              |     |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 he be retired in the highest
grade held of O-5, lieutenant colonel (LTC), and correction of his rank to
show he was advanced on the Retired List from captain (CPT/O-3) to major
(MAJ/O-4).

2.  The applicant states, in effect, that he served from November 1967 to
March 1974 as a Reserve officer on active duty (AD).  In March 1974, he was
released from AD due to a RIF (Reduction in Force) and reenlisted as an
enlisted Soldier in the Active Army and concurrently served as an officer
in the Reserve Component (RC).  He also stated that his dual component
service was never considered.

3.  He states that, after returning to CONUS (Continental United States),
he discovered that he should have been notified by the Army Human Resources
Command (AHRC)-St. Louis that he was eligible for retirement at age 58.  He
contacted AHRC and discovered that no one knew what dual-component meant
and that his officer's records could not be found.  He was advanced on the
Retired List to the highest rank held on AD, never considering his dual
component status.  In June 1981, Headquarters, Department of the Army (DA),
sent a message allowing all dual-components to retire at their highest rank
held, active or Reserve.  It was grandfathered in July 1981.

4.  He goes on to state that he worked for the DA from 1991 to 1993 as a
civilian employee, did not have access to the Internet, and that the
military personnel office (MILPO) overseas was unable to assist him.  He
describes and elaborates on the actions taken to locate his officer records
and that his records had been lost since they appeared before the 1990
Reserve Components Selection Board (RCSB) O-6, colonel (COL), board.  He
concludes that he never heard from the 1990 RCSB.

5.  The applicant provides several documents from his Official Military
Personnel File (OMPF) in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 1 February 1991, the date of his placement on the Retired List.
 The application submitted in this case is dated 5 August 2005 but was
received on 9 February 2006.


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 limitations 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.  The applicant was appointed as a Reserve commissioned officer in the
rank of second lieutenant (2LT/O-1) on 6 November 1967, with prior enlisted
service.  He was ordered to active duty (AD) on the same day.  He was
promoted to CPT/O-3 effective 13 December 1971.  He continued to serve
until he was released from AD on 29 March 1974, in the rank of CPT/O-3.  He
had a total of 6 years, 4 months, and 24 days of active Federal service
(AFS) as a commissioned officer, and 6 years, 5 months, and 27 days of
prior enlisted service, for a total of 12 years, 10 months, and 21 days of
creditable service.

4.  The applicant reenlisted in the Regular Army (RA) on 30 March 1974, in
the rank and pay grade of staff sergeant (SSG/E-6).

5.  The applicant was promoted to sergeant first class (SFC/E-7) effective
9 December 1974.

6.  While serving on AD, in the pay grade of E-7, the applicant was
promoted to major effective 12 December 1978, in the Army Reserve, without
being called to AD in that grade.

7.  The applicant was promoted to master sergeant (MSG/E-8) with an
effective date and date of rank (DOR) of 12 January 1981 and to sergeant
major   (SGM/E-9) with an effective date of 1 October 1985 and DOR of
29 September 1985.

8.  While serving on AD, in the rank of SGM/E-9, the applicant was promoted
as a Reserve commissioned officer to lieutenant colonel effective
11 December 1986, without being called to AD in that rank.  His promotion
memorandum indicated he was serving on AD as First Sergeant, but was indeed
a SGM.

9.  The applicant was considered and not selected for promotion to colonel
by the 1990 RCSB which recessed on 9 November 1990.

10.  The applicant was placed on the Retired List effective 1 February
1991, in the rank of SGM/E-9, with the highest grade held as CPT/O-3.  He
had completed 29 years, 8 months, and 21 days of creditable service for
basic pay purposes.

11.  On 10 May 1991, the applicant was advanced on the Retired List to the
rank and pay grade of CPT/O-3, the highest grade satisfactorily held on AD
upon completion of 30 years of AD service and service on the Retired List.

12.  The applicant was incorrectly identified and considered by the 1991
RCSB for promotion to colonel in July 1991 but was deleted because he was
in a non-promotable status due to retirement.

13.  Army Regulation 135-155 prescribes the policies and procedures for
promotion of Reserve officers.  The regulation provides that mandatory
selection boards will be convened each year to consider Reserve Component
officers in an active status for promotion to colonel.  The regulation
provides that in order to be qualified for promotion to colonel an
individual must have completed the Command and General Staff Officer Course
(CGSOC) and 7 years of time in grade (TIG) as a lieutenant colonel (LTC/O-
5) on or before the convening date of the respective promotion board.

14.  Army Regulation 635-200 sets forth the basis authority for separation
of enlisted personnel.  Chapter 12 provides policy and guidance on
Retirement for Length of Service.  Paragraph 12-6, of that regulation
states in pertinent part, that retired Soldiers who have less than 30 years
of active service are entitled, when their active service plus service on
the retired list total 30 years, to be advanced on the retired list to the
highest grade in which they served on active duty satisfactorily (or, in
the case of ARNGUS Soldiers, in which they served on full-time duty
satisfactorily) in accordance with 10 USC 3964.  This provision applies to
warrant officers, RA enlisted Soldiers, and Reserve enlisted Soldiers who,
at the time of retirement, are serving on active duty (or full-time
National Guard Duty).  Upon completion of 30 years of service, their
military personnel records are reviewed to determine whether service in the
higher grade was satisfactory.

15.  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.


16.  Title 10, United States Code (USC), 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.

17.  Title 10, USC, 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 as determined by the Secretary of
the Army.  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.

18.  Title 10, USC Section 1370 (a) provides that unless entitled to a
higher retired grade under some other provision of law, a commissioned
officer (other than a commissioned warrant officer) 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, except as provided in
paragraph (2), 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 6 months. This title continues in
paragraph(2)(A) that in order to be eligible for voluntary retirement under
any provision of this title in a grade above major or lieutenant commander,
a commissioned officer of the Army, Navy, Air Force, or Marine Corps must
have served on active duty in that grade for not less than three years,
except that the Secretary of Defense may authorize the Secretary of a
military department to reduce such period to a period not less than two
years in the case of retirements effective during the period beginning on
1 October 2002, and ending on 31 December 2003.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant served as a Reserve
commissioned officer on AD from 6 November 1967 to 29 March 1974, attained
the rank of CPT, and completed 6 years, 4 months, and 24 days of AFS, with
prior enlisted service.  He was honorably released from AD in the rank and
pay grade of CPT/O-3.
2.  The applicant reenlisted in the RA as a SSG on 31 March 1974 and
attained the rank of SGM/E-9.  While serving on AD in the RA, in an
enlisted status as part of a dual component program, the applicant was
promoted to MAJ and LTC, in the USAR, without being called to AD in those
ranks.  It also clearly establishes the applicant never served on active
duty in the rank and pay grade of MAJ/O-4 or LTC/O-5.

3.  The applicant was placed on the Retired List in the rank and pay grade
of SGM/E-9, with the highest rank and pay grade held as CPT/O-3.  He had
completed 29 years, 8 months, and 21 days of creditable service for basic
pay purpose.  He was advanced on the Retired List effective 10 May 1981 in
the rank and pay grade of CPT/O-3, the highest grade satisfactorily held on
AD upon completion of 30 years of AD service and service on the Retired
List.

4.  The Board finds no evidence to show that the applicant was entitled to
be advanced on the Retired List from CPT to MAJ in accordance with
statutory provisions.

5.  The Board also finds no evidence that the applicant served 6
consecutive months on active duty as a LTC/O-5 or to show that he served
satisfactorily in the grade of LTC in an active status, or in a retired
status on AD, for not less than 3 years.  Therefore, he is not entitled to
correction of his records to show that he was retired in the highest grade
held of LTC.

6.  The applicant alleges that he should have been notified by St. Louis
that he was eligible for retirement at age 58, that he discovered no one
knew what dual-component meant, and that his officer records could not be
found.  The applicant was entitled to submit a request for retirement when
he completed 20 years, but less than 30 years, of AFS in the US Armed
Forces, with approval of his request at the discretion of the Department of
the Army.  His USAR service in an inactive status, while a member of a dual
component program, did not satisfy the AD requirement for service under
provision of law.

7.  The applicant also alleges that his records were lost after they
appeared before the 1990 RCSB O-6 board and that he never heard from the
board.  The evidence of record shows that he was notified that his records
appeared before the 1990 RSCB and he was not selected for promotion.  He
was incorrectly identified and considered by the 1991 RCSB for promotion to
colonel in July 1991 but was deleted because he was in a non-promotable
status due to retirement.

8.  In order to justify correction of a military record, the applicant must
show, to the satisfaction of the Board, or it must otherwise appear, that
the record is in error or unjust.  The applicant has failed to submit
evidence that would satisfy this requirement.

9.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 1 February 1991; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on 31 January 1994.  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 timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate
the existence of a probable error or injustice.  Therefore, the Board
determined that the overall merits of this case are insufficient as a basis
for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would 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.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                  _____John Sloan_____________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050011178                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060711                                |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |19910131                                |
|DISCHARGE AUTHORITY     |AR 635-200, chapter 12                  |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |131                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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