IN THE CASE OF:	  

		BOARD DATE:	        18 DECEMBER 2008

		DOCKET NUMBER:  AR20080005971 


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 rank on the retired list be changed to captain (CPT)/O-3 which was the highest grade he held prior to retirement.

2.  The applicant essentially states that he held the rank of CPT from October 1987 through July 1995, but was passed over for promotion and discharged in 1995.  He also states that he returned to service in November 1999 as a staff sergeant (SSG)/E-6 to complete his 20 years of service.  He was informed that he would retire as a CPT/O-3 and that since he held that grade for over 3 years, it would be his retirement rank immediately upon his retirement on 30 September 2006.  He further states that his current retired identification card shows the rank of SSG/E-6 and that he has been told that he cannot reclaim his rank of CPT/O-3 until he starts collecting retirement pay at age 60.  He continued by essentially stating that he should have regained his highest rank held immediately upon retirement as he was informed prior to reentering the service in 1999.  He also states that he is aware of other personnel in the same situation as him that regained their highest grade immediately upon retirement and that they did not have to wait until they began drawing retirement pay.  Additionally, he states that of his 21 and a half years of service, 15 and a half years were served as an officer.

3.  The applicant provides a letter, dated 5 March 1983, which appointed him as a Reserve commissioned officer effective 21 August 1982; orders, dated 27 October 1987, which promoted him to CPT/O-3 effective 27 October 1987; a memorandum, dated 27 March 1995, which informed him that he was considered but not selected for promotion; his DD Form 214 (Certificate of Release or Discharge from Active Duty) which covered his active duty service from 6 December 1990 to 28 July 1991; his DD Form 214 which covered his active duty service from 26 April 2004 to 29 October 2005; his Army National Guard Retirement Points History Statement, dated 11 August 2006; and his NGB Form 22 (Report of Separation and Record of Service) that was issued to him at the time of his retirement on 30 September 2006 in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that he enlisted in the Army National Guard on 6 December 1980.  He completed initial entry training and was awarded military occupational specialty 91B (Medical Specialist).  However, on 21 August 1982, he was appointed a Reserve commissioned officer.  He was promoted to first lieutenant/O-2 effective 20 August 1985 and to CPT/O-3 effective 27 October 1987.

2.  In a memorandum, dated 27 March 1995, the applicant was advised that he was considered but not selected for promotion and, as a result of his second nonselection, he must be separated from the Army Reserve.  The applicant provided his Army National Guard Retirement Points History Statement which shows that he was discharged on 10 August 1995.

3.  In 1999, the applicant reentered the military by enlisting in the United States Air Force Reserve.  On 21 November 2002, he enlisted in the Louisiana Army National Guard in the rank of SSG/E-6.  On 30 September 2006, he was honorably discharged and transferred to the Retired Reserve after completing over 21 and a half years of service creditable for a non-regular retirement at age 60.

4.  Items 5a (Rank) and 5b (Pay Grade) of the NGB Form 22 that was issued to the applicant at the time of his transfer to the Retired Reserve show that his rank and pay grade at the time were SSG/E-6.

5.  Section 3961(a) of Title 10, United States Code, provides that the retired grade of a Regular commissioned officer of the Army who retires other than for physical disability, and the retired grade of a Reserve commissioned officer of the Army who retires other than for physical disability, is determined under section 1370 of this title.


6.  Section 3961(b) of Title 10, United States Code, provides that unless entitled to a higher retired grade under some other provision of law, a Regular or Reserve of the Army not covered by subsection (a) above who retires other than for physical disability retires in the Regular or Reserve grade that he holds on the date of his retirement.

7.  Section 1370(d) of Title 10, United States Code, provides that an individual entitled to nonregular retired pay shall upon application for retired pay, be credited with satisfactory service in the highest grade in which that person served satisfactorily at any time in the armed forces.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his rank on the retired list should be changed to CPT/O-3 which was the highest grade he held prior to retirement.

2.  While it is clear that the applicant successfully served as a CPT/O-3 prior to his retirement, by law, a Reserve of the Army not covered by section 3961(b) of Title 10, United States Code who retires other than for physical disability retires in the Regular or Reserve grade that he holds on the date of his retirement.  Upon application for nonregular retired pay at age 60, applicant will be eligible for advancement to CPT/O-3.  In view of the foregoing, there is no basis for granting relief to the applicant in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X_____  ___X_____  ____X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States throughout his military career.  The applicant and all Americans should be justifiably proud of his service in arms.




      _________XXX________________
                 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)                                         AR20080005971



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ABCMR Record of Proceedings (cont)                                         AR20080005971



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