RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         15 August 2006
      DOCKET NUMBER:  AR20060001023


      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. Shirley L. Powell             |     |Chairperson          |
|     |Ms. Rose M. Lys                   |     |Member               |
|     |Mr. John G. Heck                  |     |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, advancement to the rank and pay
grade of captain/0-3E (CPT/0-3E) on the Retired List.

2.  The applicant states, in effect, during his last years of military
service he was a dual component member.  That is he was a Reserve Component
(RC) officer serving on active duty in an enlisted status.  He requests
that he be advanced to the rank and pay grade of CPT/0-3E on the Retired
List in accordance with his retirement orders.  He claims that the entire
time he served on active duty, he was told he was meeting the requirements
necessary to retire in his commissioned officer grade.  He further states
the orders he was issued upon his retirement indicated he would be advanced
to his commissioned officer grade on the Retired List.  He states that now
that he is trying to execute this advancement, as authorized in his orders,
he is being denied and told he did not meet the requirements.

3.  The applicant provides the following documents in support of his
application:  Retirement Orders; Separation Documents (DD Forms 214), dated
30 June 1995, 9 March 1979, and 30 April 1973; Army National Guard (ARNG)
Separation Document (NGB 22), dated 30 April 1983; Personnel Qualification
Record, Part I (DA Form 2); and 26 November 1994 Officer Evaluation Report
(DA Form 67-8) Page 1.

CONSIDERATION OF EVIDENCE:

1.  On 30 June 1995, the applicant was honorably released from active duty
(REFRAD) under the provisions of the voluntary early retirement program
after completing a total of 18 years, 9 years, and 15 days of active
military service.
At the time of his separation, he held the rank and pay grade of staff
sergeant/
E-6 (SSG/E-6).

2.  The applicant's record shows that he served on active duty in an
enlisted status in the United States Marine Corps for 9 years, 8 months,
and 13 days from 27 June 1969 through 9 March 1979, at which time he was
honorably separated in the rank and pay grade of SSG/E-6.

3.  On 27 June 1982, the applicant was appointed a second lieutenant (2LT)
in the RC.

4.  The applicant's Personnel Qualification Record (DA Form 2-1) shows that
he enlisted in the Regular Army (RA) and entered active duty in that status
in the rank of private/E-2 (PV2) on 29 May 1986.  Item 18 (Appointments and
Reductions) shows the applicant attained the rank and pay grade of SSG/E-6
on 1 May 1989.  Notwithstanding the applicant’s dual status, the record
confirms that he never held a higher grade while serving on active duty.

5.  On 1 August 1989, he was promoted to the rank of CPT/0-3 in the RC,
while serving as a SSG/E-6 on active duty in the RA.  CPT/0-3 was the
highest officer rank the applicant attained while serving in a dual status
and was the USAR officer rank he held on the date of his retirement.  His
record also shows that all his commissioned RC service was performed in an
inactive status, and that he never served on active duty in a commissioned
officer status while serving in a dual status.

6.  On 8 December 2005, the Army Review Boards Agency Senior Legal Advisor
notified the applicant that after a careful review of his record and
evidence he submitted, it was determined that the applicant was not
eligible for advancement by the Army Grade Determination Review Board under
the provisions of Title 10 of the United States Code, Section 3964.

7.  The applicant provides a copy of Headquarters, 101st Airborne Division
Orders Number 60-00556, dated 1 March 1995, which authorized his REFRAD on
30 June 1995, and his placement on the Retired List the following day, 1
July 1995.  These orders authorized a retired grade of rank of SSG/E-6.
They also indicate he is authorized to be advanced to the grade of rank of
CPT/0-3E on the Retired List.

8.  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.  The law requires a member to
serve on active duty in the rank and pay grade of CPT/0-3 for a minimum
period of six months in order for service in this rank and pay grade to be
considered satisfactory for advancement on the Retired List purposes.

9.  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.

10.  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 (10 USC 3961).


11.  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, as a USAR commissioned officer, in a dual status.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's claim that he is entitled to be advanced to the rank
and pay grade of CPT/0-3E on the Retired List and the supporting evidence
he provided were carefully considered.  However, the evidence of record
shows he never served on active duty as a commissioned officer in the rank
of CPT/0-3.  Rather, he held a dual status as a commissioned officer in the
RC and as an enlisted member of the RA on active duty.

2.  By law, a commissioned officer must hold and serve in their rank of
CPT/0-3 on active duty, for a minimum of six months before they can be
placed on the Retired List in that grade.  Notwithstanding the advancement
indicated on his retirement orders, advancement on the Retired List is only
authorized when the member has satisfactorily served on active duty in a
higher pay grade.  The evidence of record confirms the highest rank and pay
grade in which the applicant satisfactorily served on active duty was SSG/E-
6, and he was appropriately placed on Retired List in that rank and pay
grade.  His dual status RC as a CPT/0-3 does not fulfill this active duty
satisfactory service requirement necessary for advancement on the Retired
List, and as a result, it is concluded the requested relief is not
warranted in this case.
3.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___SLP _  __RML __  ___JGH _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




                                  _____Shirley L. Powell _____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060001023                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2006/08/15                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1995/06/30                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |Early Retirement                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  319  |131.0900                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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