RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:      24 July 2007
      DOCKET NUMBER:  AR20070006209


      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             |
|     |Ms. Judy L. Blanchard             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John Infante                  |     |Chairperson          |
|     |Ms. Rose M. Lys                   |     |Member               |
|     |Mr. James R. Hastie               |     |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 her retired grade be changed
from Sergeant First Class (SFC) pay grade E-7 to Major pay grade O-4.

2.  The applicant states, in effect, that the highest grade she held
satisfactorily while serving on active duty was Major pay grade O-4.  She
states that her records erroneously reflect her pay grade as O-3, when it
should reflect the highest grade held on active duty.

3.  The applicant provides the following documents in support of her
application:  Promotion orders to Major, promotion orders to Captain,
promotion orders to Sergeant First Class (SFC/E-7); Transfer to United
States Army Reserve (USAR) Orders and her Certificate of Release or
Discharge from Active Duty (DD Form 214).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged (error or
injustice) which occurred on 17 December 1999.  The application submitted
in this case is dated 29 November 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 enlisted in the United States Army Reserve on 4 January
1977. On 9 November 1982, the applicant was honorably discharged to accept
commission in the U.S. Army Reserve.  She served 5 years, 10 months and
6 days of active duty enlisted service.  The highest grade she attained
during this period of service was pay grade E-5.

4.  On 10 November 1982, the applicant was commissioned as a Reserve
Commissioned Officer of the Army and entered active duty.  On 13 December
1990, the applicant was authorized to be retained in the Dual Component
Program.  At that time the applicant served as an enlisted Soldier in pay
grade
E-6 as well as a USAR Commissioned Officer, Captain pay grade O-3.
5.  On 16 December 1990, the applicant was honorably released from active
duty after completing 8 years, 1 month and 7 days of active military
service.  The separation document (DD Form 214) she was issued confirms she
held the rank of CPT on the date of her separation and that she had
attained that rank on
1 October 1986.

6.  On 17 December 1990, she again entered active duty as a Captain in pay
grade O-3.  On 25 April 1995, the applicant was promoted to Major, pay
grade
O-4, with an effective date of 18 November 1993.  Time in grade for
promotion to the next grade was determined to be 30 September 1993.  There
is no evidence of record that shows that she served on active duty as a
Major.

7.  On 1 January 1996, the applicant was promoted to SFC pay grade E-7.  On
31 January 1999, the applicant was honorably released from active duty and
placed on the retired list in the rank of SFC, after serving 22 years and
27 days of military service.

8.  On the same day, the applicant’s DD Form 214, shows that she was
honorably released from active duty on 31 January 1999, because of
sufficient service for retirement as a Captain in pay grade 03 and on 1
February 1999, she was also placed on the retirement list in pay grade O-3.

9.  Title 10, U.S. Code, section 101(d) defines “active duty” to mean full-
time duty in the active service of the United States.  Such term includes
full–time duty in the active military service of the United States.  Such
terms includes full-time training duty, annual training duty, and
attendance at a school designated as a service school while in an active
military status.

10.  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 6 months.

11.  Section 1401 (Computation of Retired Pay) of Title 10 provides
computation formulas for retired pay.  Public Law 99-348 amended this
section of the law to add Section b (Use of Most Favorable Formula) which
states, in pertinent part, that if a person would otherwise be entitled to
retired pay computed under more than one formula or of any other provision
of law, the person is entitled to be paid under the applicable formula that
is most favorable to them.

12.  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.

13.  Army Regulation 600-39 prescribes policies governing the Army’s Dual
Component Personnel Management Program.  This program allows the Department
of the Army to quickly meet mobilization requirements through procurement
of trained commissioned and warrant officers from enlisted and warrant
ranks of the Regular Army.  The concept of the program is to quickly meet
the mobilization needs for officers through procurement of trained
commissioned and warrant officers.  Current active duty members are ready
assets during times of rapid expansion of the Active Army.  They can be
mobilized to assume greater responsibilities quickly.  Warrant officers or
enlisted members may retire voluntarily in a commissioned officer status
provided they have completed 10 years of active commissioned service in
their overall total of 20 years active Federal service and hold a USAR
commission at the time of retirement.

DISCUSSION AND CONCLUSIONS:

1.  The Board notes the applicant’s contention that she should receive
retired pay in the highest rank and pay grade she held, which was MAJ/0-4.
However, it finds insufficient evidence to support this claim.

2.  By law, commissioned officers are placed on the Retired List in the
highest commissioned officer rank and pay grade in which they
satisfactorily served on active duty for not less than 6 months.  Further,
advancement of enlisted members to a commissioned officer rank and pay
grade on the Retired List requires that the member actually held and
satisfactorily served in that higher commissioned officer grade while on
active duty.  Dual status service in a higher commissioned officer rank and
pay grade in the USAR, while serving on active duty in an enlisted status,
does not meet the satisfactory service provisions of the law.

3.  The evidence of record confirms that the applicant was discharged from
her enlisted active duty status for the purpose of retirement in her
commissioned officer status.  It also verifies that she was placed on the
Retired List in the highest commissioned officer rank and pay grade that
she held, and in which she satisfactorily served while on active duty for
not less than 6 months, which was CPT/0-3.

4.  The evidence of record further shows that while serving on active duty
in an enlisted status, the applicant was promoted to MAJ/0-4 in the USAR.
However, it also confirms that she never actually served in that rank and
pay grade while she was on active duty.  Thus, the Board finds that the
applicant’s service as a MAJ/0-4 does not meet the satisfactory service
provisions of the law.  Therefore, it concludes that the requested relief
is not warranted in this case.

5.  In view of the foregoing, there is no basis for granting the
applicant's request.

6.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 17 December 1999; therefore, the time
for the applicant to file a request for correction of any error or
injustice expired on
16 December 2002.  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

____JI___  ___RML_  ___JRH__  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 Infante_____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR                                      |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2007/07/30                              |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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