RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  12 June 2008
	DOCKET NUMBER:  AR20080000582 


	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.




Director



Analyst
      The following members, a quorum, were present:




Chairperson



Member



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 his Reserve retired pay be adjusted based upon a rank of lieutenant colonel (LTC), O-5, retroactive to 29 November 2000.

2.  The applicant states that his mandatory retirement in June 1994 was based on 20 years of active service.  According to a Civil Service and U. S. Air Force Reserve retiree who worked at the old Indianapolis Finance Center, his (the applicant’s) retired pay should have been recalculated by the Defense Finance and Accounting Service to reflect his service as an Army Reserve retiree based on his total U. S. Army Reserve (USAR) and active duty service of 25 years and his retirement rank of LTC.  

3.  The applicant provides the nine enclosures identified on his accompanying letter, dated 12 December 2007.

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 born on 29 November 1940.  He initially enlisted in the     U. S. Marine Corps (delayed entry program) on 12 September 1960.  He served on active duty with the U. S. Marine Corps from 3 October 1960 through              8 September 1964.  He served in the U. S. Marine Corps Reserve until he enlisted in the Regular Army on 14 June 1965.  He was commissioned out of Officer Candidate School and entered active duty as a second lieutenant on      15 February 1969 at age 28.  He was released from active duty on 20 April 1973.

3.  On 8 September 1986, the applicant entered active duty in the rank and grade of major, O-4, in a USAR Active Guard Reserve (AGR) status.  


4.  A U. S. Total Army Personnel Command, Office of Promotions, Reserve Components memorandum, dated 11 October 1989, informed the applicant that he had been selected for promotion to LTC, pending Senate confirmation, with a promotion eligibility date of 5 January 1990.

5.  On 29 November 1993, the applicant turned age 53.

6.  Orders dated 25 February 1994 retired the applicant from active service, under the provisions of Title 10, U. S. Code, section 3911, effective 30 June 1994 with a retired grade of major.  These orders were amended on 7 April 1994 to show he would be transferred to the Retired Reserve in the rank of LTC.

7.  On 30 June 1994, the applicant retired from active service in the rank of major after completing 20 years, 1 month, and 8 days of active service.

8.  In the processing of this case, an advisory opinion was obtained from the      U. S. Army Human Resources Command – St. Louis (USAHRC – STL), Army Reserve Active Duty Management Directorate.  That office recommended disapproval of the applicant’s request to correct his rank to LTC.  That office noted that while the applicant was selected for promotion to LTC he never served in the higher graded position and therefore was not authorized the rank and grade of LTC, O-5, per Army Regulation 135-155 (and cited the current version of the regulation but no specific chapter or paragraph).

9.  The advisory opinion also noted that the applicant’s Chronological Statement of Retirement Points had been corrected per his request.  The correction resulted in 150 points less than had been last calculated in July 1994, for a total of 7577 points.  

10.  The applicant’s Chronological Statement of Retirement Points was reviewed again at the request of the Board analyst, and on 30 May 2008 his points were calculated to be 7786.  This Statement shows he earned no extension course points during retirement years ending 11 September 1978 through 11 September 1981, but he did earn 43 extension course points during retirement year ending 11 September 1982.

11.  A copy of the advisory opinion was provided to the applicant for comment or rebuttal.  The applicant noted that the advisory opinion did not cite a chapter and paragraph in Army Regulation 135-155 to support its recommendation.  He also noted that had this regulation been in effect in 1994 he would have been able to delay his retirement and transfer to the Individual Ready Reserve to accept the 

promotion.  He acknowledged that he did not serve any active duty time in the grade of O-5, but he stated that he was placed on the Retired List as an O-5.  He wondered if, when he reached age 60, he qualified for the same benefits as other USAR officers when they start receiving their retired pay.  He requested a copy of Title 10, U. S. Code, section 1374(A), which was listed as the authority for transferring him to the Retired Reserve in the rank and grade of LTC, O-5.  He states that since his Chronological Statement of Retirement Points has now been adjusted to show he was in the Individual Ready Reserve, he should receive extension course points for the Transportation Officer’s Advance courses he completed between September 1978 and April 1981.  

12.  At the time, sections 1331 through 1337 (and currently sections 12731 through 12740) of Title 10, U.S. Code, authorized retired pay for Reserve component military service.  Under that law, a Reserve Soldier was eligible for retired pay if the person was at least 60 years of age; had performed a minimum of 20 qualifying years of service, and was not entitled to retired pay under any other provision of law.  The term “good years” is an unofficial term used to mean years in which 50 or more retirement points are earned during each year and which count as qualifying years of service for retirement benefits at age 60.

13.  Army Regulation 135-18 (The Active Guard Reserve (AGR) Program)   states all AGR officers will be released from active duty when they have attained 20 years and 1 month of qualifying service for an active duty retirement unless they have been approved for voluntary retention.

14.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers other than General Officers), paragraph 4-18b of the version in effect at the time (Update 22, dated 1 June 1990), stated a Reserve officer, on transfer to the Retired Reserve, would be “Transferred in the Reserve grade for which selected for promotion.  This is when the transfer is being made because of physical disability, or as a result of completing the number of years of service, or reaching the age at which retirement, transfer to the Retired Reserve, or discharge is required by law.”  

15.  Army Regulation 135-155, paragraph 4-8a of the version in effect at the time, stated a USAR officer who was mandatorily considered and then selected for promotion could be transferred from the unit to the IRR and promoted.  The current regulation states the same.  

16.  Army Regulation 135-155, paragraph 4-14a of the version in effect at the time, stated officers serving on active duty in an AGR status could be promoted to the higher grade provided the duty assignment of the officer required a higher 
grade than that currently held by the officer.  AGR officers who had been selected for promotion and were not assigned to a position calling for a higher grade would remain on the promotion list and serve on active duty in the AGR program until they were removed from the promotion list; promoted to the higher grade following reassignment to an AGR position calling for the higher grade; or promoted to the higher grade following release from active duty.  The current regulation states the same.

17.  Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers), paragraph 7-2(f) (Removal rule 1, Length of Service), stated that LTCs and below would be removed from an active status on their 53d birthday if age 25 or older at initial appointment.  The current regulation states the same.

18.  Title 10, U. S. Code, section 1374(a) at the time, stated a Reserve commissioned officer who was recommended for promotion to a higher Reserve grade and who before being promoted was transferred to the Retired Reserve because of physical disability or as a result of completing the number of years of service or reaching the age at which his retirement, transfer to the Retired Reserve, or discharge was required by law, would be transferred in the grade for which he had been recommended or found qualified for Federal recognition.

19.  Title 10, U. S. Code, section 1370 at the time, stated that unless entitled to a higher retired grade under some other provision of law, a commissioned officer who retired under any provision of law other than chapter 61 (physical disability) or 67 (retired pay for non-regular service) of this title shall be retired in the highest grade in which he served on active duty satisfactorily for not less than six months.

20.  Title 10, U. S. Code, section 1406(c) at the time, stated that for a member entitled to retired pay under section 3911 the retired pay base is the monthly basic pay of the member’s retired grade.

DISCUSSION AND CONCLUSIONS:

1.  The applicant misunderstands the circumstances and the authority under which he retired.  He retired from active service, under the provisions of Title 10, U. S. Code, section 3911.  He did not retire under the provisions of sections 1331 through 1337 of Title 10, U.S. Code, which authorized retired pay for Reserve component military service.  He has been drawing retired pay since 1 July 1994.  Nothing further was required/nothing changed when he turned age 60.  In fact, because he was entitled to and drawing retired pay by reason of his active duty retirement, he did not meet the statutory eligibility criteria for a Reserve retirement.
2.  It is true that the applicant had been selected for promotion to LTC with a promotion eligibility date of 5 January 1990.  However, he was on active duty in an AGR status at that time.  Contrary to his statement in his rebuttal to the advisory opinion, it is not true that he would have been able to delay his retirement and transfer to the Individual Ready Reserve to accept the promotion under current regulatory guidance.

3.  Both the version of Army Regulation 135-155 in effect at the time and the current version state that officers serving on active duty in an AGR status who are selected for promotion and not assigned to a position calling for a higher grade would remain on the promotion list and serve on active duty in the AGR program until they are removed from the promotion list; promoted to the higher grade following reassignment to an AGR position calling for the higher grade; or promoted to the higher grade following release from active duty.  

4.  Only if the applicant had been in a troop program unit rather than on active duty in an AGR status at the time he was selected for promotion could he have been transferred to the IRR to accept the promotion.  It is possible the applicant could have requested early release from the AGR program; however, in that case he would not have completed 20 years of service for an active duty retirement.

5.  It is acknowledged that the applicant was placed on the Retired List as an LTC, O-5, in accordance with Title 10, U. S. Code, section 1374(A), a copy of which will be provided to him.  However, that is not the authority under which his retired pay is computed.  

6.  The applicant also acknowledged that he never served as an LTC.  Therefore, under Title 10, U. S. Code, section 1370 at the time, he was retired in the highest grade in which he served on active duty satisfactorily for not less than six months.  That grade was O-4.  He retired from active service, under the provisions of Title 10, U. S. Code, section 3911.  Title 10, U. S. Code, section 1406(c) at the time, stated that for a member entitled to retired pay under section 3911 the retired pay base is the monthly basic pay of the member’s retired grade. Again, his retired grade was O-4.  

7.  There is insufficient evidence that would warrant granting the relief requested.

8.  The applicant mentioned in his rebuttal to the advisory opinion that he should receive extension course points for the Transportation Officer’s Advance courses he completed between September 1978 and April 1981.  


9.  The applicant did not provide evidence to show he completed any extension courses between September 1978 and April 1981 with his ABCMR application.  His Chronological Statement of Retirement Points shows he earned 43 extension course points during retirement year 11 September 1982.  If he has evidence to show he completed additional courses during the period September 1978 through April 1981, he should provide that evidence to USAHRC – STL and ask them to again update his Chronological Statement of Retirement Points.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  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.



      __xxxxxxxxxxxxxx_____
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20080000582


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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508