RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  10 July 2007
	DOCKET NUMBER:  AR20060017622 


	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.


Ms. Catherine C. Mitrano

Director

Mr. John J. Wendland, Jr.

Analyst


The following members, a quorum, were present:


Ms. Kathleen A. Newman

Chairperson

Ms. Susan A. Powers

Member

Mr. Edward E. Montgomery

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, correction of his records to show he was promoted to colonel (COL)/pay grade O-6 and receipt of all back-pay and allowances from his new date of rank (DOR) of 1 October 2005 through the date he retired from active duty on 31 December 2005.

2.  The applicant states, in effect, had he been promoted on the corrected date (i.e., 1 October 2005), he would not have voluntarily retired on 1 January 2006 with 25 years active duty.  He also states, in effect, that he is concurrently submitting an application for recall to active duty through his branch.  He further states, in effect, that he is requesting correction of his records in order to be promoted to colonel.

3.  The applicant provides a copy of Headquarters, Directorate of Human Resources, U.S. Army Garrison - Hawaii, Schofield Barracks, Hawaii, Orders 210-0017, dated 29 July 2005; DD Form 214 (Certificate of Release or Discharge from Active Duty), with an effective date of 31 December 2005; and Headquarters, U.S. Army Human Resources Command (USA HRC),
AHRC-MSP-S, Alexandria, Virginia, memorandum, dated 29 November 2006, subject:  Promotion Status.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military service records show that he entered active duty on 12 June 1985, as a U.S. Army Reserve (USAR) commissioned officer in the Dental Corps, in the grade of major.  The applicant’s records also show that he served continuously on active duty, was appointed in the Regular Army (RA), and promoted to the grade of lieutenant colonel (LTC), effective 1 October 1990.  The applicant’s records further show, in pertinent part, that he served in Bosnia from 12 April 1998 to 14 September 1998; Hungary from 1 January 2003 to 26 April 2003; and Afghanistan from 24 April 2004 to 24 April 2005.

2.  The applicant’s military service records contain a copy of his DD Form 214, with an effective date of 31 December 2005.  This document shows, in pertinent part, that the applicant was honorably released from active duty on 31 December 2005 in the grade of LTC and placed on the retired list in the grade of LTC, effective 1 January 2006.  At the time, he had completed 25 years and 23 days active service for voluntary retirement purposes.

3.  A review of the applicant’s military service records via the online Integrated Personnel Electronic Records Management System (i PERMS) shows a copy of Headquarters, USA HRC, AHRC-OPD-RD, St. Louis, Missouri, memorandum, dated 10 May 2007, subject: Appointment as a Reserve Commissioned Officer of the Army Under Title 10, U.S. Code (USC), sections 12201 and 12203.  This document shows, in pertinent part, that the applicant was appointed a Reserve commissioned officer of the Army in the grade of LTC for an indefinite term.

4.  The applicant’s records also contain a copy of Headquarters, USA HRC, AHRC-OPD-RD, St. Louis, Missouri, Orders A-05-790376, dated 11 May 2007, which show the applicant was ordered to active duty not later than 31 May 2007 as a USAR Dental Corps officer in the grade of LTC for a period of 48 months.  This document further shows, in pertinent part, that as a retired recall, the applicant was appointed in the reserve grade of LTC, placed on the active duty list in the grade of LTC in accordance with Army Regulation 135-101, and that his DOR was to be adjusted as the highest grade held on date entered active duty (EAD) this tour.  The applicant’s military service records also show that his DOR for LTC was adjusted to 14 May 2007.

5.  In support of his application, the applicant provides a copy of his DD Form 214 and orders retiring him from active duty.  These two documents show, in pertinent part, that the applicant was honorably released from active duty on
31 December 2005 in the grade of LTC and placed on the retired list in the grade of LTC, effective 1 January 2006.  At the time, he had completed 25 years and 23 days active service for voluntary retirement purposes.

6.  The applicant also provides a copy of Headquarters, USA HRC, Alexandria, Virginia, memorandum, dated 29 November 2006, subject: Promotion Status, which shows that he was reconsidered and selected for promotion to colonel by a Department of the Army Special Selection Board under the same criteria and instructions established for the regularly constituted selection board that adjourned in August 2004.  This document also shows that the applicant was assigned a sequence number of .5 on the Fiscal Year 2004 (FY04) promotion list; however, since he was no longer on active duty, Headquarters, USA HRC, could not issue orders announcing the promotion.  This document further shows that the applicant would have been promoted, effective and with a DOR of
1 October 2005.  The applicant was also advised that should he desire relief as a result of this selection, he should apply to the Army Board for Correction of Military Records.

7.  Army Regulation 600-8-29 (Officer Promotions) prescribes policies and procedures governing promotion of commissioned and warrant officers on the active duty list.  Chapter 7 (Special Selection Boards), Section I (Managing Special Selection Boards), states that Special Selection Boards (SSB) are governed by the same instructions provided to the boards that considered or should have considered an officer for promotion.  The SSB may be convened under Title 10 USC section 628, to consider or reconsider commissioned or warrant officers for promotion when Headquarters, Department of the Army discovers one or more of the following: (1) an officer was not considered from in or above the promotion zone by a regularly scheduled board because of administrative error (this would include officers who missed a regularly scheduled board while on the Temporary Disability Retired List (TDRL) and who have since been placed on the Active Duty List (ADL), Title 10, USC, section 628(a)(1)) (SSB required); (2) the board that considered an officer from in or above the promotion zone acted contrary to law or made a material error (SSB discretionary); or (3) the board that considered an officer from in or above the promotion zone did not have before it some material information (SSB discretionary).

8.  Army Regulation 600-8-24 (Officer Transfers and Discharges) prescribes the officer transfers from active duty to the Reserve Component (RC) and discharge functions for all officers on active duty for 30 days or more.  Chapter 6 contains the policies and procedures for retirement.  Paragraph 6-27 (Rules for processing mandatory retirement due to maximum service) provides, in pertinent part, that unless earlier retired, an RA lieutenant colonel (not recommended for promotion) will retire the first day of the month after the month which the officer completes
28 years Active Commissioned Service (Title 10, U.S. Code, section 633). 

9.  Title 10, U.S. Code, section 1370 (Commissioned officers: general rule; exceptions), provides the rule for retirement in highest grade held satisfactorily and states 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.

10.  Title 10, U.S. Code, section 1370(2)(a), provides, in pertinent part, 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 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 applicant contends, in effect, that his records should be corrected to show that he was promoted to COL (O-6) with a DOR of 1 October 2005 and receipt of all back-pay and allowances from his DOR through the date he retired from active duty on 31 December 2005 because, if he would have been promoted on the corrected date (i.e., 1 October 2005), he would not have voluntarily retired on
1 January 2006 with 25 years active duty.

2.  The evidence of record shows that the applicant voluntarily retired from active duty in the rank of LTC (O-5) with 25 years and 23 days active service, effective 1 January 2006.  The evidence of record also shows that on 29 November 2006, subsequent to the effective date of his retirement, the applicant was notified that he was selected for promotion to COL (O-6) by a Department of the Army SSB and that the DOR and effective date for his promotion to COL (O-6) would have been 1 October 2005, were he still on active duty.  Thus, it is reasonable to assume that, had the applicant been notified of his promotion to COL (O-6) at the same time as other officers who were notified of their selection for promotion by the FY04 Headquarters, Department of the Army, Colonel, Dental Corps, AMEDD Selection Board that adjourned in August 2004, the applicant would have accepted promotion to the rank of COL (O-6).  Therefore, the applicant is entitled to correction of his records to show that he was promoted to the rank of COL (O-6), effective and with a DOR of 1 October 2005.

3.  The evidence of record shows that a commissioned officer in the rank of colonel must serve on active duty 3 years in grade to retire in rank; however, the Secretary of the Army may reduce such period to a period not less than 2 years.
The evidence of record also shows that a commissioned officer may be retired in the highest grade in which he served on active duty satisfactorily for not less than 6 months.  The evidence of record shows that, had the applicant remained on active duty, he would have been promoted to COL (O-6), effective 1 October 2005.   The evidence of record also shows that the applicant retired from active duty, effective 1 January 2006.  Notwithstanding the fact that the applicant was selected for promotion to COL (O-6) by a SSB subsequent to the effective date of his retirement, based on the evidence of record, the applicant would have held the rank of COL (O-6) less than 6 months at the time he was placed on the retired list.  Thus, the highest grade in which he served on active duty satisfactorily was LTC (O-5).  Therefore, the applicant is not entitled to correction of his records to show he retired in the rank of COL (O-6).

4.  The evidence of record shows that the applicant was recalled to active duty in the rank of LTC (O-5) in May 2007.  Therefore, in view of all of the foregoing, the applicant’s records should be corrected as recommended below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___KAN _  ___SAP_  ___EEM _  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 relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

a.  promoting the applicant to the rank of COL (O-6), effective and with a date of rank of 1 October 2005;

b.  correcting his records to show the applicant’s rank as COL (O-6), at the time he retired from active duty on 31 December 2005; and

c.  the highest grade in which the applicant served on active duty satisfactorily was LTC (O-5) and that he was placed on the retired list in the grade of LTC (O-5), effective 1 January 2006.

2.  As a result of the above corrections, the Defense Finance and Accounting Service shall be notified of the Board's determination and remit payment of all back pay (i.e., pay and allowances, less any withholdings and/or deductions) that may be due as a result of these corrections.


3.  In addition, as a result of the above corrections, the Commander, USA HRC, will review the applicant’s Appointment as a Reserve Commissioned Officer of the Army Under Title 10, U.S. Code, sections 12201 and 12203, and his accession onto active duty as a retired recall and correct the applicant’s military service records, as applicable.




___Kathleen A. Newman____
          CHAIRPERSON




INDEX

CASE ID
AR20060017622
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/07/10
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
20051231
DISCHARGE AUTHORITY
AR 688-8-24, Paragraph 6-14c(1) 
DISCHARGE REASON
Sufficient Service for Retirement
BOARD DECISION
GRANT PARTIAL
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
102.0900.0000
2.
110.0300.0000
3.

4.

5.

6.