IN THE CASE OF:	  

		BOARD DATE:	       16 SEPTEMBER 2008

		DOCKET NUMBER:  AR20080007246 


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 that his records be corrected to reflect his retired rank as a major (MAJ) instead of captain (CPT). 

2.  The applicant states, in effect, that he was promoted to the rank of major in the United States Army Reserve (USAR) and should have been retired in that rank.    

3.  The applicant provides a copy of his Department of Veterans Affairs (VA) Rating Decision and copies of his reports of separation (DD Form 214). 

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 inducted in Coral Gables, Florida on 14 July 1970 and served on active duty as a field artillery crewman until he was honorably released from active duty (REFRAD) in the pay grade of E-5 on 13 July 1972 and was transferred to the United States Army Reserve (USAR) Control Group (Annual Training).   

3.  He enlisted in the Regular Army on 16 June 1975 and served until he was honorably discharged on 25 August 1977 to accept a commission.  

4.  On 26 August 1977, he was commissioned as a USAR artillery second lieutenant with a concurrent call to active duty.  He was subsequently qualified as a rotary wing aviator and branch transferred to aviation.  He was promoted to the rank of captain (CPT) on 13 May 1981.   

5.  On 1 September 1988, he was honorably REFRAD at Fort Sill, Oklahoma due to failure of selection for permanent promotion.  He had served 15 years, 4 months, and 16 days of total active service and was transferred to the USAR Control Group (Reinforcement) in the rank of CPT.  He was paid $30,000 in separation pay benefits and was informed that he had the right to enlist in the Regular Army.

6.  On 2 September 1988, he enlisted in the Regular Army in the pay grade of   E-5, for a period of 5 years at Fort Sill, Oklahoma and remained assigned to Fort Sill for his entire enlistment.  He was promoted to the pay grade of E-6 on 1 September 1991.  

7.  He also maintained a dual-component status as a regular army staff sergeant and a USAR Major (he was promoted to the rank of major in the USAR on 30 May 1990, with a date of rank of 3 September 1988).     

8.  On 10 April 1992, the applicant submitted his request for voluntary retirement to be effective 1 May 1993.  He signed his application as a USAR Major at the time he was serving as a Regular Army staff sergeant.

9.  The DA Form 3713 (Data for Retired Pay) contained in his record indicates that the applicant’s retired grade and pay as a captain was determined in accordance with Section 1370, Title 10, United States Code and that he was serving on active duty in the pay grade of E-6.

10.  On 8 July 1992, orders were published by the Total Army Personnel Command (TAPC) that directed his REFRAD effective 30 April 1993 and placement on the Retired List in the rank of MAJ.

11.  On 30 April 1993, he was honorably REFRAD in the pay grade of E-6 and was transferred to the USAR Control Group (Retired) in the rank of captain.  However, his orders and DD Form 214 incorrectly reflect that he was REFRAD in the pay grade of O-4 (major).

12.  A review of the applicant’s official record fails to show any evidence that the applicant ever served on active duty as a major.

13.  In the processing of this case a staff advisory opinion was obtained from the Human Resources Command – St. Louis (HRC-STL) which opines that the highest rank in which the applicant served on active duty was that of a CPT and he is currently being paid in that rank.  Officials at the HRC-STL also opined that the applicant’s DD Form 214 should be corrected to reflect his rank at the time of his REFRAD as a SSG/E-6 instead of a major/O-4.  The advisory opinion was provided to the applicant for comment and to date no response has been received by the staff of the Board.

14.  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.  

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 12 sets policies and procedures for voluntary retirement of Soldiers because of length of service.  Paragraph 12-3b 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 (10 USC 3961).  

16.  Paragraph 12-6 (Advancement on the Retired List) 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.  There are no other provisions of law or regulation that provide for the advancement of an enlisted member who served, as a USAR commissioned officer, in a dual status.  
     




DISCUSSION AND CONCLUSIONS:

1.  The applicant's claim that he is entitled to be advanced to the rank and pay grade of CPT/O-3E on the Retired List and the supporting evidence he provided was carefully considered.  However, the evidence of record shows that although he served on active duty as a CPT, he never served on active duty as a commissioned officer in the rank of MAJ/O-4.  Rather, his service on active duty after his REFRAD as a USAR CPT was entirely served as an enlisted member of the Regular Army.  

2.  Notwithstanding the advancement indicated on his retirement orders, advancement on the Retired List is only authorized when the member has satisfactorily served on active duty in a higher pay grade.  The evidence of record confirms the highest rank and pay grade in which the applicant satisfactorily served on active duty was CPT, and he was appropriately placed on the Retired List in that rank and pay grade.  His dual status as a USAR MAJ does not fulfill this active duty satisfactory service requirement necessary for advancement on the Retired List, and as a result, it is concluded the requested relief is not warranted in this case.

3.  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 this requirement.

4.  It has been noted that the applicant’s DD Form 214 incorrectly reflects that he was REFRAD as a MAJ O-4 and further indicates that he was serving as a commissioned officer at the time of his REFRAD, when in fact he was serving on active duty as a SSG/E-6 and should have been REFRAD in that grade and then placed on the Retired List in the rank of CPT.  However, it has long been the policy of this Board that it will not direct an action that will appear to make an applicant worse off than when they applied.  Therefore, the Board will not direct such corrections be made unless the applicant requests the actions in writing.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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.  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)                                         AR20080007246



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ABCMR Record of Proceedings (cont)                                         AR20080007246



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