RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17 May 2007
	DOCKET NUMBER:  AR20060014988 


	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. Gerard W. Schwartz

Acting Director

Mr. Michael L. Engle

Analyst

The following members, a quorum, were present:


Mr. Eric N. Andersen

Chairperson

Mr. Antonio Uribe

Member

Mr. Rodney E. Barber

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 correction of her deceased spouse's, a former service member (FSM), military records to show his retirement rank and pay grade as lieutenant colonel, O5.  She further asks for retroactive payment of retired pay differential between major and lieutenant colonel from 31 March 1985 to 26 May 2005; retroactive collection of survivor benefit plan (SBP) premium differential between major and lieutenant colonel for the period from 31 March 1985 to 
31 May 2005; retroactive payment of SBP annuity differential for the period from 1 June 2005 to the date of approval of this request; and continued payment of these SBP annuities.  In the alternative, she requests authority for her and her family to refer to the FSM as lieutenant colonel in correspondence. 

2.  The applicant states that the FSM was unjustly and capriciously released from active duty in 1972, just 9 days short of completing 18 years of active federal service.  The FSM's entire service was in aviation.  He was a master Army aviator.  She further states that the decision to allow the FSM to reenlist, as an exception to policy, selectively recognized Title 10, United States Code 3258 as to entitlement to reenlist, but failed to also recognize the accompanying entitlement to seniority and credit for service.  As a result, the FSM was returned to active duty as a staff sergeant, pay grade E6 vice a warrant officer or a sergeant major, pay grade E9.  She further states that the FSM should have been retained on active duty in some capacity in 1972.  The Department of the Army actions to release him in May 1972; to deny reenlistment in May 1972; to deny service as a warrant officer in 1972; to authorize reenlistment as a staff sergeant vice sergeant major in 1982; to deny warrant officer status in 1982; and to retire him as a major vice lieutenant colonel in 1985; were unjust and not in compliance with procedures applicable to the United States Army as a whole. 

3.  The applicant provides a copy of the FSM's Certificates of Release or Discharge from Active Duty (DD Form 214) dated 30 March 1965 and 30 May 1972; Computation of Date of Rank (AGP7 Form 1074) dated 6 October 1967; Letter of support, undated; Memorandum of Consideration dated 16 September 1981; Comment, Administrative Law Division, dated 25 June 1981; Letter, Office of the Adjutant General, United States Army dated 8 March 1982; Enlistment/Reenlistment Document (DD Form 4/1), dated 28 December 1982; Special Orders S21-14, dated 31 January 1985; Special Orders S45-28, dated 
7 March 1985; Letter, United States Army Personnel Center, dated 22 August 1985; Letter, United States Army Reserve, dated 13 March 1995; FSM's Death Certificate; and International Marriage Certificate.


CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 31 March 1985, the date of the FSM's retirement.  The application submitted in this case is dated 10 October 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.  On 10 June 1954, the FSM enlisted in the Regular Army for 3 years.  He completed his initial training and continued to serve through a series of enlistments until his release from active duty on 16 June 1960.  He attained the rank of specialist six, pay grade E6, and had completed 6 years and 5 days of creditable active duty.

4.  On 17 June 1960, the FSM was appointed a second lieutenant in the United States Army Reserve (USAR) with concurrent call to active duty.  He attained the rank of captain, pay grade O3.

5.  On 30 March 1965, the FSM was voluntarily released from active duty and transferred to the USAR Control Group (Reinforcement).  He had completed 
10 years, 9 months and 21 days of creditable active duty.  He also had completed 4 years, 8 months and 13 days of active commissioned service.

6.  On 30 September 1965, the FSM was ordered to active duty as an aviation maintenance officer.  He was promoted to major, USAR, pay grade O4 with a date of rank of 31 May 1968.

7.  On 31 January 1972, the FSM was advised that he had been selected by the Department of the Army Active Duty Board for release from active duty.  

8.  On 10 March 1972, the FSM applied for appointment and call to active duty as a warrant officer.  This request was denied on the basis that he did not possess the necessary overall qualifications and skills related to the requirements of the specialty in which he had requested an appointment.
9.  On 21 March 1972, the FSM requested to reenlist in the United States Army and a grade determination was requested.  A determination was made that his break in active duty service from 1 April to 30 September 1965 voided his statutory right to reenlist.  His request was subsequently denied.

10.  On 30 May 1972, the FSM was released from active duty and transferred to the USAR Control Group (Reinforcement) as a major.  He had completed 
17 years, 5 months, and 23 days of creditable active duty with 11 years, 
4 months and 13 days as a commissioned officer, and 2 years, 11 months and 29 days in grade as a major.

11.  On 30 May 1979, the FSM was promoted to lieutenant colonel, pay grade O5, in the United States Army Reserve.  

12.  In 1980, the FSM applied to this Board for correction of his DD Form 
214 dated 30 May 1972, to change his date of entry from 30 September to 
28 September 1965, so as to restore his statutory right for reenlistment, effective 30 May 1972.  The Board determined that there was no error based on the then current accountability policy requiring utilization of the actual date he reported to active duty.  However, subsequent to 1972, this policy had changed but was not implemented retroactively.  In the processing of this case, the Board had obtained an opinion from the Office of The Judge Advocate General stating that the FSM should be allowed to reenlist because the revised policy supported his original request.  

13.  On 28 December 1982, the applicant enlisted in the Regular Army for 
3 years in the rank of staff sergeant, pay grade E6.  His date of rank was initially established as the date of this enlistment, but was soon corrected to 6 August 1969, in accordance with the requirements of section 3258, Title 10, United States Code, providing for no loss of seniority or credit for service.

14.  On 10 July 1984, the applicant was promoted to sergeant first class, pay grade E7.

15.  Orders S21-14, United States Army Military Personnel Center, dated 
31 January 1985, retired the FSM in the rank of lieutenant colonel, pay grade O5. Orders S45-28, United States Army Military Personnel Center, dated 7 March 1985 changed his retired rank to major, pay grade O4.  An electronic message dispatched that same day explained that the FSM was not eligible to retire as a lieutenant colonel because he had not served in that rank for the required length of time on active duty.  It further stated that there were no provisions for a waiver due to the statutory basis of the active duty requirement.
16.  On 31 March 1985, the FSM was retired as a major, pay grade O4.  He had completed over 20 years of creditable active duty.

17.  Title 10, United States Code, section 1370, provides that unless entitled to a higher retired grade under some other provision of law, a commissioned 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. (2)(A)  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 3 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 2 years.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record clearly shows that the FSM served on active duty as a commissioned officer for more than 11 years, attaining the rank of major, pay grade O4.  It further shows that he was promoted to lieutenant colonel in the United States Army Reserve but never served on active duty in this grade.

2.  The FSM was involuntarily released from active duty.  He subsequently returned to active duty as a noncommissioned officer attaining the rank of sergeant first class, pay grade E7.

3.  Pursuant to 10 United States Code 3911, the FSM voluntarily retired as a major, pay grade O4, the highest rank and pay grade that he held while on active duty.  

4.  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 the aforementioned requirement.

5.  The FSM's active duty retirement does nothing to negate his status as a lieutenant colonel in the United States Army Reserve.  Therefore, the use of this USAR rank in correspondence is acceptable, provided it is written as: Lieutenant Colonel, USAR. 


6.  In view of the foregoing, there is no basis for granting the applicant's request to posthumously retire the FSM as a lieutenant colonel. Therefore, the remainder of the applicant's request as pertains to retired pay and SBP benefits is without merit.

7.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 31 March 1985; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
30 March 1988.  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

__ENA__  __AUJ___  __REB__   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.




__     Eric N. Andersen_______
          CHAIRPERSON



INDEX

CASE ID
AR20060014988
SUFFIX

RECON
 
DATE BOARDED
20070517 
TYPE OF DISCHARGE
 
DATE OF DISCHARGE
 
DISCHARGE AUTHORITY
 
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
129.0400.0000
2.

3.

4.

5.

6.