RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  4 December 2007
	DOCKET NUMBER:  AR20070009887 


	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. Linda D. Simmons

Chairperson

Ms. Eloise C. Prendergast

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 his rank and pay grade on the Retired List be changed to major (MAJ)/O-4.

2.  The applicant states that during his military service, he was in dual component status.  He was a sergeant first class (SFC/E7) in the Regular Army and a MAJ/O-4 in the U.S. Army Reserve (USAR).  In December 1981, he was placed on permanent change of station (PCS) orders.  However, having completed 19 years and 6 months of active military service at the time, he elected to retire in lieu of PCS, effective 31 December 1981.  He further adds that in June 1981, he received a copy of the Headquarters, U.S. Army Signal Center and Fort Gordon, Fort Gordon, Georgia, Circular Number 600-4, dated 8 June 1981, that prescribed the policy to retire a commissioned officer after the effective date (15 September 1981) of the Defense Officer Personnel Management Act (DOPMA).  DOPMA required a dual component status MAJ to serve at least six months on active duty to retire at that grade, if retiring after 15 September 1981.  Having not served the required six month on active duty in the grade of MAJ, he attempted to change his retirement date to 1 August 1981, but was denied.  When he retired as a SFC/E-7, he also opted for the commissioned officer status.  In October 1989, he requested and was approved to change his grade on the Retired List from SFC/E-7 to captain (CPT/O-3).  The applicant also argues that if he were given the opportunity to retire on 1 August 1981 instead of 31 December 1981, then he would not have had to complete the six-month active duty requirement for entitlement to retire at the higher grade of MAJ as prescribed by DOPMA.  He concludes that he should have been either advanced to the grade of MAJ/O-4 in October 1989 on the retired list or should have been retired in the grade of MAJ/O-4, and that he is not trying to back-date his date of rank or get any back pay; he rather wants to be advanced to where he should have been in 1989 with a date of rank as the date of this letter.

3.  The applicant provides the following additional documentary evidence in support of his application:

	a.  Memorandum, Headquarters, U.S. Army Signal Center and Fort Gordon, Fort Gordon, Georgia, dated 29 December 1980, Notification of Assignment Instructions.

	b.  DA Form 2496 (Disposition Form), dated 8 January 1981, Voluntary Retirement in Lieu of PCS Statement.


	c.  Department of the Army, Headquarters, U.S. Army Signal Center and Fort Gordon, Fort Gordon, Georgia, USASC&FG Circular Number 600-4, dated 8 June 1981, Retirement Prior to DOPMA Implementation by members Holding a Higher reserve Commissioned Grade.

	d.  DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 31 December 1981.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant was a dual component status Soldier:  He was a Regular Army enlisted Soldier during the period 16 September 1959 through 5 April 1967; he was commissioned in the USAR on 6 April 1967 in the Signal Corps; and reverted back to enlisted status on 14 April 1974.  He was released from active duty on 31 December 1981 and placed on the retired list, in the grade of SFC/E-7, on 1 January 1982.

3.  On 2 November 1977, Office of The Adjutant General, Reserve Components Personnel and Administration Center, St. Louis, Missouri, notified the applicant (then serving as a staff sergeant), that he was selected for promotion to MAJ in the USAR with an effective date of 16 December 1977. 

4.  On 3 December 1979, U.S. Army Military Personnel Center, Alexandria, Virginia, published Orders Number 339-1, announcing the applicant's promotion to SFC/E-7 with an effective date of 1 January 1980 and a date of rank of 31 December 1979.  Additionally, the Orders stated that Soldiers who were promoted automatically incurred a 2-year service obligation prior to voluntary non-disability retirement.  

5.  On 29 December 1980, the applicant was notified by Headquarters, USASC&FG, Fort Gordon, Georgia, that he was placed on assignment instructions.  However, having completed at lease 19 years and 6 months of military service at the time he was alerted for his PCS move, he elected, on 8 January 1981, to apply for retirement in lieu of PCS, and on 20 January 1981, he submitted his request for voluntary retirement effective 1 January 1982.  

6.  On 8 June 1981, USASC&FG published Circular Number 600-4 providing guidance on the impact of the Defense Officer Personnel Management Act (DOPMA) on those Soldiers who held dual component status.  The Circular stated in part that:

	"In order to retire in a commissioned grade after 15 September 1981, the effective date of DOMPA, any commissioned officer of the Army must have served satisfactorily on active duty in that grade.  To retire in the grade of lieutenant colonel or above, a commissioned officer must have served on active duty for at least two years in that grade if promoted or on an approved list for promotion before 15 September 1981.  If selected for promotion after 15 September 1981, such officers must have served three years on active duty to retire in that grade.  All other commissioned officers must have served at least six months on active duty in a grade in order to retire in that grade.  Officers not meeting these active duty requirements would be retired in the next lower grade in which served satisfactorily for at least six months." 

7.  On 5 November 1981, the applicant's request for retirement was approved.  He was released from active duty on 31 December 1981.  The DD Form 214 he was issued confirms he retired as a SFC/E-7 on 1 January 1982 and had completed 22 years, 3 months, and 15 days of creditable military service.

8.  On 23 October 1989, having reached 30 years of active and retired service, the applicant was advanced on the Army of the United States (AUS) Retired List to the grade of CPT/O3 effective 16 September 1989, the highest grade the applicant satisfactorily held.  

9.  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 six months.

10.  Title 10 of the United States Code, section 3965 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.

11.  AR 635-200 (Personnel Separations) sets policies, standards, and procedures for the orderly administrative separation of Soldiers for a variety of reasons.  Chapter 12 sets policies and procedures for voluntary retirement of Soldiers because of length of service and governs the retirement of Soldiers (Active Army, Army National Guard, and United States Army Reserve) who are retiring in their enlisted status. 

12.  Paragraph 12-3b of Army Regulation 635-200 states, in pertinent part, that retirement will be in the regular or reserve grade the soldier holds on the date of retirement as directed in Title 10 of the United States Code, section 3961 

13.  Paragraph 12-6 of the regulation contains guidance on the advancement of enlisted soldiers on the Retired List.  It indicates that advancement on the Retired List is limited to retired soldiers who held a higher grade and successfully served in that higher grade while on active duty.  

14.  Paragraph 12-8(d) of Army Regulation 635-200 provides guidance on promotion service obligations.  It states, in pertinent part, that Soldiers who are promoted to the grade of sergeant first class, master sergeant/first sergeant, or sergeant major/command sergeant major incur a 2-year service obligation.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant was promoted to SFC/E-7 on 1 January 1980.  With this promotion, the applicant automatically incurred a       2-year service remaining obligation.  The applicant's request to retire on 1 August 1981 is not available for review with this case.  However, the 2-year service remaining obligation explains why such a request could not have been honored. 

2.  Evidence of record further shows that the applicant held a dual status as a commissioned officer in the USAR and as an enlisted member of the RA on active duty.  The evidence also confirms that the he was placed on the Retired List under the provisions of law pertaining to RA enlisted members who have completed the necessary active duty service to qualify for retirement. 

3.  Evidence of record also reveals that the highest rank and pay grade in which the applicant satisfactorily served on active duty was CPT/0-3 and that he was advanced to the rank and pay grade of CPT/0-3 on the Retired List, under advancement provisions of the law, based on his satisfactory active duty service in that rank and pay grade .

4.  Although the applicant was promoted to the grade of MAJ/O-4 effective 16 December 1977, there is no evidence that he served on active duty the required 6-month service obligation for that grade.  Advancement on the Retired List is only authorized when the member has satisfactorily served on active duty in a higher pay grade.  By law, a commissioned officer MAJ must hold and serve in their rank, on active duty, for a minimum of six months before they can be placed on the Retired List in that grade. 

5.  In view of the foregoing, there is no basis for granting the applicant's request and therefore the applicant is not entitled to relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__lds___  __ecp___  __jrh___  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.




							Linda D. Simmons
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20070009887
SUFFIX

RECON

DATE BOARDED
20071204
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
129.0400
2.

3.

4.

5.

6.