IN THE CASE OF:	    

		BOARD DATE:	         16 September 2008

		DOCKET NUMBER:  AR20070013559 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his records be corrected by adjusting his date of rank to captain (CPT) from 28 July 1974 to 24 June 1971, and his date of rank to major (MAJ) from 24 September 1982 to 24 June 1977, and in effect that he be promoted to lieutenant colonel (LTC).  Additionally, the applicant requests that he be advanced to LTC on the retired rolls.  

2.  The applicant states, in effect, that he served 4 years and 3 months time in the grade of CPT while on active duty at the time of his discharge.  The applicant continues that he was assigned to an Army Reserve unit but was not promoted to MAJ nor was he promoted to the rank of LTC.  The applicant contends if he had been promoted to LTC with a date of rank of 24 June 1983, it would have given him the time in grade and the active duty service requirement to retire in the grade of LTC.

3.  The applicant contends that he was told by a staff member at the Army Board of Correction of Military Records that his situation was previously shared by others and favorably corrected by the Board for others being promoted.  The applicant continues that any non-concurrence will have significant financial impact due to the pay difference between the ranks of CPT, MAJ, and LTC.  

4.  The applicant continues that he is still on active duty and is submitting the formal request for advancement to the highest grade held.  It is his intent to initiate both actions at the same time he reaches his 30 years retirement mark and reenters the retirement rolls.
5.  The applicant continues that he was released from active duty as a captain with over 9 years of service due to a reduction in force, returned to his home of record, and joined a reserve unit.  The applicant continues that six months later he was offered the opportunity to return to active duty which he turned down and continued his job with the Fort Wayne Police Department and service as a reservist.  

6.  The applicant continues that his service included active duty tours as an Airfield commander at Fort McCoy, Wisconsin and other active duty support tours filling the ranks of both MAJ and a LTC positions.  The applicant adds that his military education included the Aviation Safety Officer course, the Fixed Wing Instructor Pilot course, the Infantry Officer Basic and Advanced course, and the Command and General Staff College course.  The applicant continues that he was informed that due to his rank and promotion eligibility he would have to revert to a warrant officer in the grade of Chief Warrant Officer Two.  The applicant adds that after weighing his options he decided he would retire at the highest grade held at the end of 20 years of service.  The applicant continues that he reverted to Chief Warrant Officer Two on 23 January 1989 and served in the United States and Europe over the next 11 years until he retired in February of 2000 as a Chief Warrant Officer Three.

7.  The applicant contends that based on Army Regulation 600-8-24 (Officer Transfers and Discharges) as shown in paragraph 6-11, he needs a total of 30 years of active duty, or a combination of active duty and retired list time totaling 30 years to be eligible for advancement to and restoration of his former highest grade held.  The applicant further contends that this subject matter was in total contrast to anything he and other military personnel had discussed.  The applicant states that he will reach the 30 year milestone in November of 2008.

8.  The applicant continues that on 29 October 2002, he re-entered active duty status under the Retiree Recall Program and served 2 years in Korea, and is currently on assignment as an active duty "augmentee" to B Company, 2nd Battalion, 228th Aviation Regiment and the reserve Operational Support Airlift Command (OSACOM) fixed wing unit located at Fort Rucker, Alabama.  

9.  The applicant states that he will continue at his current assignment pending a tour extension approval beyond his current expiration date of September 2008 to September of 2010 at which time he would be assigned to Korea for a period of a least 1 year.  The applicant continues that it is his intention to serve through September 2010 at which time he will most likely revert to the retiree rolls hopefully with the corrected rank of LTC.  The applicant contends that retirees are not eligible to be promoted under this program which many of "us" feel is an injustice.  Accomplishment of the requested corrections would be most gratifying. 
10.  The applicant provides copies of a DD Form 214 (Report of Separation from Active Duty), dated 24 September 1975; a DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 29 February 2000; a DA Form 2-1 (Personnel Qualification Record - Part II); initial reserve assignment orders; two pay vouchers; a DA Form 67-8 (U.S. Army Officer Evaluation Report (OER)); a letter of commendation; and two DA Forms 71 (Oath of Office - Military Personnel) in support of this application. 

CONSIDERATION OF EVIDENCE:

1.  After having had prior enlisted and warrant officer service the applicant was appointed as a Reserve Commissioned Officer of the Army in the grade of first lieutenant (1LT) on 24 June 1970 and entered extended active duty on this date. 

2.  Headquarters, 194th Armored Brigade, Fort Knox, Kentucky Special Orders Number 137, dated 24 June 1971 show the applicant was promoted to CPT in the Army of the United States (AUS) on 24 June 1971.

3.  A Department of the Army letter from the Office of The Adjutant General U.S. Army Reserve Components Personnel and Administration Center, St. Louis, Missouri, dated 11 July 1974 shows the applicant was promoted as a Reserve Commissioned Officer of the Army to the grade of CPT on 28 July 1974.

4.  The applicant's DD Form 214, dated 24 September 1975, shows he was honorably released from active duty as a Reserve Commissioned Officer of the Army in the rank of CPT and transferred to the United States Army Reserve (USAR) Control Group (Reinforcement).  

5.  Headquarters, Fifth United States Army, Fort Sam Houston, Texas, letter, dated 27 August 1982 shows the applicant was promoted as a Reserve Commissioned Officer to the rank of MAJ on 24 September 1982.

6.  The applicant was apparently discharged from the USAR as a MAJ on or about 22 January 1989.  

7.  A Department of the Army U.S. Total Army Personnel Agency (Provisional), St. Louis, Missouri memorandum, dated 6 January 1989 shows the applicant was appointed as a Reserve Warrant Officer of the Army in the rank of CW2.  A DA Form 71 shows he executed an Oath of Office on 23 January 1989 and was appointed in the rank of CW2.

8.  On 24 January 1995, the applicant was promoted to CW3.

9.  On 29 February 2000, the applicant was retired for length of service in the grade of CW3 and on the following day he was placed on the retired list.  

10.  Department of the Army US Total Army Personnel Command, St. Louis, Missouri Orders A-10-295365, dated 29 October 2002 shows the applicant was recalled to active duty from retired status.

11.  On 20 September 2007, the applicant requested that the Army Grade Determination Review Board (AGDRB) of Military Review Boards adjust his date of rank of MAJ for promotion and advancement on the retired list in the rank of LTC.  

12.  The applicant's record contains an Army Grade Determination for Retirement - Action Memorandum, dated 2 January 2008, which shows his request was denied.  The AGDRB memorandum shows that on 26 December 2007, it determined that the highest grade in which the applicant served satisfactorily for the purposes of computation of retired pay is in the rank of MAJ.  The memorandum contends that the date the applicant became, or will become eligible for advancement on the retired list will be determined by the United States Army Human Resources Command-St. Louis Missouri.  

13.  In the processing of this case, a staff advisor's opinion was obtained from the Chief, Special Actions Branch Department of Promotions at U.S. Army Human Resources Command, St. Louis Missouri, dated 3 January 2008.  The advisory opinion recommended disapproval of the applicant's request to have his date of rank to CPT and MAJ changed, and promotion consideration to LTC.  The opinion states that the applicant while serving on active duty received an AUS temporary promotion to captain on 24 June 1971.  The opinion also shows that in accordance with Army Regulation 135-155, in effect at the time stated that an officer's date of rank is based on meeting all promotion requirements and assignment to a Reserve status.  The opinion continues that the applicant met the four years time in grade requirement on 24 June 1974, and since he was on active duty at that time he was not eligible for the Reserve promotion.  The opinion shows that the applicant's earliest eligible date was 25 September 1975, the day after his release from active duty.  Therefore, based on the Reserve assignment date and the fact the AUS promotion was temporary the applicant's correct USAR DOR to captain is 25 September 1975.  

14.  The opinion also shows that the applicant's DOR to MAJ on 24 September 1982 is the correct date, since he was promoted upon meeting the seven years time in grade requirement in accordance with table 2-1, of Army Regulation 135-155.  The opinion continues that the applicant's promotion eligibility date to LTC was 23 September 1989, however, he was appointed a warrant officer on 24 June 1988 and was not eligible for promotion consideration to LTC.  

15.  A Department of the Army, U.S. Army Human Resources Command, St. Louis, Missouri letter, dated 17 January 2008 shows that the applicant was advanced on the retired list effective 23 November 2007 to the grade of MAJ, which is the highest grade he satisfactorily held.  

16.  Army Regulation 135-155 (Army National Guard and Army Reserve, Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), the version in effect at the time of the applicant’s promotion to CPT, effective 1 November 1970, in pertinent part, shows that an officer's date of rank is based on meeting all promotion requirements and assignment to a reserve status.  The officer's records will be screened to determine eligibility for promotion to the next higher grade far enough in advance to permit promotion on the date the promotion service is completed in compliance with table 2-1 or table 2-3 of this regulation.

17.  Army Regulation 135-155, paragraph 2-1 of the version in effect at the time of the applicant’s promotion to CPT, stated that to be eligible for selection for promotion as a Reserve of the Army, an officer must have been in an active Reserve status, have been on active duty, or have been participating satisfactorily in Reserve training, and meet the prescribed minimum military educational requirements.  Promotion to CPT required 4 years in the grade of 1LT; promotion to MAJ required 7 years in the grade of CPT; and promotion to LTC required 7 years time in the grade of MAJ.

18.  Army Regulation 135-155, paragraph 4-2a of the version in effect at the time of the applicant’s promotion to CPT, stated Reserve component officers serving on active duty would be promoted at the time specified.  Paragraph 4-2a(1) stated USAR officers serving on active duty in an AUS grade higher than their current USAR would be promoted to the next higher USAR grade upon completion of the promotion service.  Paragraph 4-3a stated a Reserve officer, upon release from active duty, would be promoted effective the day following the date of release, to a Reserve grade that was equal to the highest temporary grade satisfactorily held on active duty.  

19.  Army Regulation 135-155, paragraph 2-4 of the version in effect at the time of the applicant’s release from active duty, effective 15 October 1974, stated that to be eligible for consideration for promotion as a Reserve of the Army, an officer must have been in an active Reserve status and meet the service requirements in table 2-1 (i.e., promotion to CPT required 4 years in the grade of 1LT; promotion to MAJ required 7 years in the grade of CPT; and promotion to LTC required 7 years time in the grade of MAJ).  Paragraph 2-5 stated that, to be eligible for selection, a USAR member who met the eligibility requirements of paragraph 2-4 must have been on active duty or be participating satisfactorily in Reserve training.

20.  Army Regulation 135-155, paragraph 4-14 of the version in effect at the time of the applicant’s release from active duty, stated the procedures chapter 5 would be followed for members who were serving on active duty.  

21.  Army Regulation 135-155, paragraph 5-3 of the version in effect at the time of the applicant’s release from active duty, stated that an officer serving on active duty who was promoted to a higher temporary AUS grade would be promoted to the same permanent Reserve grade.  Promotion to the permanent grade would be the earlier of (a) the date of completion of service requirements under mandatory consideration (table 2-1); or (b) years of service as announced annually by the Secretary of the Army but no earlier than the date of the AUS promotion.  

22.  Army Regulation 135-155, paragraph 5-4 of the version in effect at the time of the applicant’s release from active duty, stated that a USAR member would be promoted the day after release from active duty to a permanent Reserve grade which was equal to the highest temporary AUS grade satisfactorily held on active duty.

23.  Army Regulation 600-8-24 (Officer Transfers and Discharges), chapter 6 (Retirements) in pertinent part shows that this chapter applies to non-disability retirement of ADL commissioned and warrant officers on AD to include AGR commissioned and warrant officers who have 20 years or more of AFS.  A commissioned officer, in the rank of major and below may retire in the highest rank served satisfactorily on AD for 6 or more months unless entitled by law to a higher grade (Title 10, United States Code, Section 1370(a)(1),).  A commissioned officer must serve on AD 3 years in grade to retire in rank above major and below lieutenant general.  However, the Secretary of Defense has authorized the Secretary of the Army to waive this requirement in individual cases involving extreme hardship or exceptional or unusual circumstances 
(10 USC 1370(a)(2)).  Generally, unless entitled to a higher retired grade under some other provision of law, or reduced in accordance with a grade determination review conducted under the provisions of AR 15–80, a warrant officer retires as determined by the Secretary of the Army in the permanent Regular or Reserve warrant officer grade, if any, that he or she held on the day before retirement or in the higher warrant officer grade, if any, in which he served on active duty satisfactorily, as determined by the Secretary of the Army, for a period of more than 30 days (10 USC 1371).   
DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show his date of rank to CPT as 24 June 1971, to MAJ as 24 June 1977, and with any pay and allowance differences for the adjusted date of ranks.  Additionally, the applicant contends that his records should show he was eligible for promotion to the rank of LTC with the date of rank of 24 June 1983.  

2.  The applicant entered active duty on 24 June 1970 as a USAR 1LT.  He received an AUS temporary promotion to CPT on 24 June 1971.  

3.  After serving the required 4 years in grade as a USAR 1LT, the applicant received his permanent Reserve promotion to CPT on 24 June 1974.  

4.  The applicant was released from active duty on 24 September 1975.  

5.  The advisory opinion noted that in accordance with Army Regulation 135-155, in effect at the time, an officer's date of rank is based on meeting all promotion requirements and assignment to a Reserve status.  The regulation (both the regulation in effect at the time of the applicant’s promotion and version in effect at the time of his separation) did state that.  The advisory opinion continued that the applicant met the four years time in grade requirement for promotion to CPT on 24 June 1974.  That was also in accordance with the guidance in either of the regulations that might be applicable.

6.  However, the advisory opinion then went on to state that since the applicant was on active duty at that time he was not eligible for the Reserve promotion. That is not in accordance with the guidance in either the 1 November 1970 version or the 15 October 1974 version of Army Regulation 135-155.  

7.  Paragraph 2-1 of the version of Army Regulation 135-155 in effect at the time of the applicant’s promotion to CPT, stated that to be eligible for selection for promotion as a Reserve of the Army, an officer must have been in active Reserve status, have been on active duty or have been participating satisfactorily in Reserve training, and meet the prescribed minimum military educational requirements.  

8.  Paragraph 2-5 of the version of Army Regulation 135-155 in effect at the time of the applicant’s separation also stated that, to be eligible for selection, a USAR member who met the eligibility requirements of paragraph 2-4 must have been on active duty or have been participating satisfactorily in Reserve training.  Paragraph 5-3 of this version further stated that an officer serving on active duty who was promoted to a higher temporary AUS grade would be promoted to the same permanent Reserve grade the earlier of (a) the date of completion of service requirements under mandatory consideration (table 2-1); or (b) years of service as announced annually by the Secretary of the Army but no earlier than the date of the AUS promotion.  

9.  In the applicant’s case, the guidance in either versions of Army Regulation 135-155 were carried out when the Office of The Adjutant General, U. S. Army Reserve Components Personnel and Administration Center, St. Louis, Missouri, promoted him as a Reserve Commissioned Officer of the Army to the grade of CPT on 28 July 1974.  At this point, in time it cannot be determined why he was promoted on 28 July 1974 and not on 24 June 1974.  It is presumed that he did not meet all of the other eligibility criteria until the following month.

10.  The advisory opinion then goes on to state that the applicant's earliest eligible effective date for promotion to CPT was 25 September 1975, the day after his release from active duty.  

11.  It appears the advisory opinion, and the U. S. Army Reserve Components Personnel and Administration Center at the time, took this information from paragraph 4-3a of the version of Army Regulation 135-155 in effect at the time of the applicant’s promotion and from paragraph 5-4 of the version in effect at the time of his release from active duty.  These paragraphs stated that a USAR member would be promoted the day after release from active duty to a permanent Reserve grade which was equal to the highest temporary AUS grade satisfactorily held on active duty.

12.  However, those paragraphs did not apply to the applicant.  He did not need to be promoted to a permanent Reserve grade that was equal to the highest temporary AUS grade he had held on active duty because he had already been promoted to the highest temporary AUS grade he had held.  

13.  The applicant’s date of rank when he was released from active duty should have remained 28 July 1974 and not changed to 25 September 1975.  His date of rank would not have been 24 June 1971.  That was the date of his AUS promotion to CPT and was relevant only because it determined that he was eligible for his Reserve promotion to CPT.  

14.  The erroneous adjustment of the applicant’s permanent Reserve CPT date of rank from 28 July 1974 to 25 September 1975 impacted on his eligibility for Reserve promotion to MAJ and possibly on his consideration for Reserve promotion to LTC.

15.  Based upon the erroneous adjustment of his CPT date of rank, the applicant was promoted to MAJ on 24 September 1982.  However, his promotion eligibility date for promotion to MAJ should have been 27 July 1981.  

16.  Presuming the applicant would have been selected for promotion to Reserve MAJ in a timely manner, his promotion eligibility date for promotion to LTC would have been 23 September 1988.  He may or may not have been recommended for promotion to LTC by time he was appointed a warrant officer on 6 January 1989, but it appears he should have been considered for promotion to LTC.

17.  The applicant’s records should be corrected to show that when he was released from active duty on 24 September 1974 that he carried his Reserve CPT date of rank of 28 July 1974 with him.  His records should be submitted to duly constituted special selection boards for mandatory Reserve promotion consideration to MAJ and LTC under the appropriate criteria given a CPT date of rank of 28 July 1974.

18.  However, it is also acknowledged that with the passage of more than           30 years or so records may no longer be available that would enable the applicant to be considered by a special selection board.  If this is in fact the case, the applicant should be so notified and the only correction that would have effect would be the correction of his date of rank to Reserve CPT.

19.  At this time, the available evidence indicates that the highest grade the applicant held was MAJ.  Unless and until he is selected for promotion to LTC, proper consideration cannot be given to advancing him to LTC on the retired list.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X__  ____X____  __X____  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 partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

     a.  showing that when he was released from active duty on 24 September 1974 he carried his Reserve CPT date of rank of 28 July 1974 with him; and

     b.  contingent upon sufficient records being available to constitute special selection boards, submitting his records to duly constituted special selection boards for mandatory Reserve promotion consideration to MAJ and LTC under the appropriate criteria given a CPT date of rank of 28 July 1974.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to adjusting his Reserve CPT date of rank to 24 June 1971; his Reserve MAJ date of rank to 24 June 1977; showing, prior to the results of a special selection board, that he was promoted to Reserve LTC; or, prior to the results of a special selection board, advancing him to LTC on the retired list.  




      _______ _  X _______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20070013559





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20070013559



10


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1