RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  4 October 2007
	DOCKET NUMBER:  AR20070007372 


	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. Mohammed R. Elhaj

Analyst


The following members, a quorum, were present:


Ms. Susan A. Powers

Chairperson

Mr. Edward E. Montgomery

Member

Mr. Qawiy A. Sabree

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, to change his retired pay grade from sergeant major (SGM)/E-9 to the grade of lieutenant colonel (LTC)/O-5 on the Retired List. 

2.  The applicant states, in effect, that he served in dual status during his military service.  He served and retired as an enlisted Soldier while at the same time he was appointed as a commissioned officer in the U.S. Army Reserve (USAR).  He further states that upon reaching 60 years old, he was issued a retired identification card in the rank of LTC, but his official records have not been updated.

3.  The applicant provided a copy of U.S. Total Army Personnel Command, St. Louis, Missouri, Memorandum, dated 8 October 1990, notifying him of his selection for promotion to the grade of LTC. 

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show that he was born on 28 May 1944 and enlisted in the Regular Army on 28 March 1963.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11B (Infantryman). 

2.  Headquarters, 1st U.S. Army, Fort Meade, Maryland, Orders Number 161-18, dated 12 August 1977, show that the applicant, while on active duty as a sergeant first class (SFC), was appointed as a captain (CPT) in the U.S. Army Reserve (USAR) in accordance with Army Regulation 135-100 (Appointment of Commissioned and Warrant Officers of the Army). 

3.  A memorandum from the U.S. Army Personnel and Administrative Center, St. Louis, Missouri, dated 29 May 1984, informed the applicant that he was promoted to the grade of major (MAJ) in the USAR effective 28 July 1984.  The memorandum also shows that the applicant was serving on active duty in the grade of master sergeant (MSG)/E-8.

4.  A memorandum from the U.S. Army Personnel Command, St. Louis, Missouri, dated 8 October 1990, informed the applicant that he was promoted to the grade of lieutenant colonel (LTC) in the USAR effective 27 July 1991.  The applicant's records show that he was serving on active duty in the grade of master sergeant (MSG)/E-8.

5.  On 15 April 1992, the applicant requested retirement from active duty.  The DA Form 2339 (Application for Voluntary Retirement) the applicant submitted showed his "current grade" as SGM/E-9, Reserve commissioned status as "active", and grade as "LTC."

6.  On 1 May 1992, the applicant completed DA Form 3713 (Data for Retired Pay) that shows his active duty grade was SGM and his retired pay grade was  E-9.  This form also shows that he was credited with 29 years, 6 months, and 3 days of service for the purpose of voluntary retirement.

7.  On 30 September 1992, after more than 29 years of dedicated and faithful service, the applicant retired from active duty and was placed on the Retired List in the grade of SGM effective 1 October 1992.  

8.  The applicant's DD Form 214 with the separation date of 30 September 1992 shows he was honorably retired at the grade of sergeant major/pay grade E-9 with 29 years, 6 months, and 3 days of net active service.

9.  The applicant turned 60 years old on 28 May 2004.

10.  Army Regulation 635-200 (Personnel Separation) provides for the placement of enlisted soldiers on the retired list.  Paragraph 12-4 of this regulation in effect at the time, required that the retirement of a Soldier be in the pay grade he or she holds on the date of retirement.  Paragraph 12-5b states that an enlisted member who holds a reserve commission, who has more than 20 but less than 30 years of active service, may elect to be transferred to the Retired Reserve in either their enlisted or commissioned status.  If the enlisted status is chosen, the Soldier’s commission is vacated upon his or her transfer to the Retired Reserve since a Soldier cannot hold more than one status as a reservist.  Once the Soldier makes the election and is retired, the election cannot be changed.

11.  Section 1370 of Title 10, United States Code, states in part, that Reserve officers, unless entitled to a higher grade, be credited with satisfactory service in the highest grade in which that person served satisfactorily at any time in the armed forces.  In order to be credited with satisfactory service in an officer grade (other than a warrant officer grade) at the grade of lieutenant colonel, a person must have served on active duty satisfactorily in that grade (as determined by the Secretary of the military department concerned) as a Reserve commissioned officer in an active status, or in a retired status on active duty, or must have served on active duty in that grade for not less than three 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 two years.
12.  Title 10, United States Code, section 3911, states that Regular or Reserve commissioned officers may retire as commissioned officers if they have at least 20 years of service, 10 years of which have been active service as a commissioned officer.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests advancement to the rank of LTC//pay grade O-5 on the retired list.

2.  Evidence shows that during the applicant's active duty service, he served and retired as a SGM.  Evidence also shows that he was promoted to the grade of LTC in the USAR 27 July 1991.  However, there is no evidence that shows the applicant served on active duty in the grade of LTC for six months which is required by law to receive pay of LTC at the time of his retirement. 

3.  Based on the fact that the applicant was promoted to LTC, he is authorized to be identified by that grade.  However, since he did not successfully serve the required period of active duty as a LTC, he is not entitled to retirement pay and allowances in the grade of LTC.  In view of the foregoing and in accordance with law, there is no basis to grant the applicant's request in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__sap___  __eem___  __qas___  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.




							Susan A. Powers
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20070007372
SUFFIX

RECON

DATE BOARDED
20071004
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
129.0400
2.

3.

4.

5.

6.