IN THE CASE OF:	  

		BOARD DATE:	  13 August 2008

		DOCKET NUMBER:  AR20080006041 


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 he be retired and placed on the Retired List in his highest grade held, that of a colonel/pay grade O-6 and that he receive retirement pay as a colonel instead of lieutenant colonel.

2.  The applicant states, in effect, he was retired at his mandatory retirement date in the grade of lieutenant colonel due to his having reached 28 years of service.  He further states he had been selected for promotion to colonel, was promoted on 31 March 2005, and was not allowed to complete his 30 years commissioned service.

3.  The applicant provides a copy of his selection letter for promotion to colonel, orders for promotion to colonel, Federal Recognition Orders, orders for separation from the Texas Army National Guard (TXARNG), orders for transfer for separation processing, orders releasing him from active duty and placement on the Retired List, NGB Form 22 (Report of Separation and Record of Service), DD Form 214 (Certificate of Release or Discharge From Active Duty, and 
DA Form 2-1 (Personnel Qualification Record) in support of his application.

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's records show he was commissioned a second lieutenant in the TXARNG on 1 March 1977.  He was ordered to full-time National Guard duty in the Active Guard Reserve effective 28 July 1986, where he served until his retirement.  He was promoted to lieutenant colonel/pay grade O5 effective 
1 January 1999.

3.  A letter, dated 15 December 2004, from the U. S. Army Human Resources Command, St. Louis, Missouri (HRC-STL) notified the Army National Guard Personnel Center in Arlington, Virginia that the applicant had been selected 
for promotion by a mandatory promotion board to the grade of colonel/pay 
grade O-6 to be effective 21 January 2004 or the date Federal recognition was extended in the higher grade.

4.  Federal Recognition was extended effective 31 March 2005 and the applicant was promoted to colonel effective 31 March 2005.

5.  The applicant's NGB Form 22 shows he was separated from the TXARNG effective 31 March 2005 with 28 years and 1 month of commissioned service.

6.  On 31 March 2005, the applicant was voluntarily released from active duty and voluntarily placed on the Retired List effective 1 April 2005 in the grade of lieutenant colonel under the provisions of Title 10, United States Code (USC) with 21 years, 3 months, and 19 days of active service.

7.  Block 26 (Separation Code) of the applicant's DD 214 contains the entry, RBD.  Separation Program Designator (SPD) RBD is defined in Army Regulation 635-5-1 (SPD Codes).  This regulation indicates that the SPD RBD identifies voluntary retirement for length of service – sufficient service for retirement.

8.  Title 10, USC, Section 3911 provides that the Secretary of the Army may, upon the officer’s request, retire a regular or reserve commissioned officer of the Army who has at least 20 years of service computed under section 3926 of this title, at least 10 years of which have been active service as a commissioned officer.


9.  Title 10, USC, Section 1370 provides that in order to be eligible for voluntary retirement under any provision of law other than for disability or non-regular service in a grade above major a commissioned officer of the Army 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. 

10.  Title 10, USC, Section 1370 further provides that an officer whose length of service in the highest grade he held while on active duty does not meet the service in grade requirements shall be retired in the next lower grade in which he or she served on active duty satisfactorily, as determined by the Secretary of the military department concerned, for not less than six months.

11.  Title 10, USC, Section 14507 provides that officers in the rank of lieutenant colonel/pay grade O-5 and who are not on a list of officers recommended for promotion to the next higher grade may not serve in an active status for more than 28 years of commissioned service.

12.  Title 10, USC, Section 14507 provides that officers in the rank of colonel/ pay grade O-6 and who are not on a list of officers recommended for promotion to the next higher grade may not serve in an active status for more than 30 years of commissioned service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should have been placed on the Retired List in the grade of colonel.  He further contends he was retired at his MRD and not allowed to complete his 30 years commissioned service.

2.  Upon selection for promotion to colonel the applicant's MRD would have been at completion of 30 years of commissioned service under the provisions of Title 10, USC, Section 14507.  The applicant was promoted to colonel on 31 March 2005 and voluntarily retired on the same date.  

3.  The applicant did not have the required three years on active duty in the grade of colonel.  Therefore, he was placed on the Retired List in the next lower grade, lieutenant colonel, in which he served on active duty satisfactorily for at least six months.

4.  In view of the above, the placement of the applicant on the Retired List in grade of lieutenant colonel was correct.  There are no provisions for advancing him after placement on the Retired List.

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  __X_____  ____X__  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.



      __________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)                                         AR20080006041



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ABCMR Record of Proceedings (cont)                                         AR20080006041



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