RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        11 September 2007
      DOCKET NUMBER:  AR20070004341


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Larry C. Bergquist            |     |Chairperson          |
|     |Ms. Marla J. Troup                |     |Member               |
|     |Ms. Ernestine I. Fields           |     |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 that he be advanced on the retired list to the
rank and pay grade of Captain, O3E.

2.  The applicant states he retired at the rank and grade of Master
Sergeant, E-8. The highest grade he held on active duty was Captain.  He
has been retired for
7 years.

3.  The applicant provides a DD Form 214 (Report of Separation from Active
Duty) for the period ending 31 December 1974; a DD Form 214 (Certificate of
Release or Discharge from Active Duty) for the period ending 31 March 2000;
his retirement orders; a DA Form 2339 (Application for Retired Pay); and a
DA Form 7301-R (Officer Service Computation for Retirement).

CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned a second lieutenant in the U. S. Army
Reserve on 30 May 1970 and entered active duty on 8 July 1970.  He was
promoted to Captain on 8 July 1974.  He was released from active duty on
    31 December 1974 and transferred to the U. S. Army Reserve Control
Group (Reinforcement).  On 30 April 1976, he was honorably discharged from
the U. S. Army Reserve by reason of resignation.  His DA Form 7301-R does
not show that he performed any active duty between the date he was released
from active duty and the date he was discharged from the U. S. Army
Reserve.

2.  On 3 March 1983, the applicant enlisted in the Army National Guard.  He
entered active duty in an Active Guard Reserve status on 1 July 1983.  He
was promoted to Master Sergeant on 1 February 1994.  He retired from active
duty and was placed on the retired list in the rank and grade of Master
Sergeant, E-8 on 1 April 2000 after completing a total of 21 years, 3
months, and 9 days of active duty and 23 years and 28 days of service for
pay.

3.  Army Regulation 635-200 sets forth the basic authority for the
separation of enlisted personnel.  In pertinent part, it provides that
retired Soldiers, when their active service plus service on the retired
list total 30 years, are entitled to be advanced on the retired list to the
highest grade in which they satisfactorily served on active duty.  When
these Soldiers complete 30 years of service, their military personnel
records are reviewed to determine whether service in the higher grade was
satisfactory.

4.  Title 10, U. S. Code, section 3961(b) states that, unless entitled to a
higher retired grade under some other provision of law, a Regular or
Reserve of the Army not covered by section 3961(a) (which discusses
commissioned officers) who retires other than for physical disability
retires in the regular or reserve grade that he holds on the date of his
retirement.

5.  Title 10, U. S. Code, section 3964 states that a Reserve enlisted
member of the Army serving on active duty, to include a member of the
National Guard on full-time National Guard duty, 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
satisfactorily on active duty.

6.  Title 10, U. S. Code, section 3992 states that an enlisted member who
is advanced on the retired list under section 3964 of this title is
entitled to recompute his retired pay in accordance with this section.

7.  Title 10, U. S. Code, section 1370 provides that, in order to be
eligible for voluntary retirement under any provision of this title in the
grade of Major or below, a commissioned officer of the Army must have
served on active duty in that grade for not less than six months.

8.  The Department of Defense Financial Management Regulation, Volume 7A,
paragraph 10103 states that commissioned officers with over 4 years of
prior active service as an enlisted member, warrant officer, or combined
service in both grades are entitled to count such service for purposes of
computing basic pay for longevity purposes.

9.  Title 37, U. S. Code, section 203(d)(1) states the basic pay of a
commissioned officer who is in pay grade O-1, O-2, or O-3 and who is
credited with a total of over four years’ service described in paragraph
(2) shall be computed in the same manner as the basic pay of a commissioned
officer in the same pay grade who has been credited with over four years’
active service as an enlisted member.  Section 203(d)(2) states service to
be taken into account for purposes of computing basic pay under paragraph
(1) is as follows:

      (A) Active service as a warrant officer or as a warrant officer and
an enlisted member, [or]

      (B) Service as a warrant officer, as an enlisted member, or as a
warrant officer and an enlisted member, for which at least 1,460 points
have been credited to the officer for the purposes of section 12732(a(2) of
Title 10.

10.  The 1 January 2007 basic pay chart states the basic pay for E-8s over
        22 years of service is $4,347.30.  The basic pay for O-2s over 22
years of service is $3,936.60.
DISCUSSION AND CONCLUSIONS:

1.  The applicant had no prior enlisted service prior to his being
commissioned on 30 May 1970.  Therefore, he was never eligible for O-3E pay
and consequently is not eligible for retired pay as an O-3E.

2.  The applicant was promoted to Captain on 8 July 1974.  He was released
from active duty on 31 December 1974.  He was honorably discharged from the
U. S. Army Reserve on 30 April 1976.  There is no evidence to show he
served on active duty as a Captain for more than 5 months and 24 days;
therefore, he is not eligible for advancement on the retired list to the
rank and grade of Captain, O-3.

3.  The applicant would be eligible for advancement on the retired list to
the rank and grade of First Lieutenant, O-2.  However, the basic pay rate
for an O-2 with over 22 years of service for pay is less than the basic pay
rate for an E-8 with over 22 years of service for pay and this type of
correction would result in the loss of pay for the applicant.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__lcb___  __mjt___  __eif___  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.




                                  __Larry C. Bergquist__
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070004341                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070911                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |129.04                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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