IN THE CASE OF:	  

		BOARD DATE:	        22 July 2008

		DOCKET NUMBER:  AR20080007287 


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 shown to have been placed on the Retired List in the rank and pay grade of captain O-3E, with retroactive pay and benefits.

2.  The applicant states, in effect, that since he had over 11 years of commissioned service when he retired and should have been retired in his commissioned rank and grade not his enlisted rank and grade.

3.  The applicant provides copies of his 30 November 1997 DD Form 214 (Certificate of Release or Discharge from Active Duty), his 30 April 1988 DD Form 214, and two pages from Army Regulation 600-8-24. 

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 first entered active duty in the Air Force (USAF) on 28 August 1970.  He was commissioned a USAF officer on 13 September 1976 and served on active duty until 30 April 1988.

3.  On 30 April 1988, the applicant was honorably discharged from the USAF as a captain (O-3E), due to being twice passed over for promotion.  He had 11 years, 7 months, and 18 days of commissioned active service with 6 years and 16 days of active enlisted service.  There is no indication he had any additional obligated service or that he was transferred to the inactive Reserve at this time.

4.  Between 1 May 1988 and 22 September 1992, the applicant held no military status.

5.  On 23 September 1992, he enlisted in the District of Columbia Army National Guard (DCARNG) in the rank of sergeant (E-5).  The applicant served several periods on active duty including a 9 month tour in Germany that commenced on 10 July 1996.  

6.  On 2 October 1996, the applicant requested an extension of his period of active service in order to complete 20 years of active service for the purpose of attaining the required period of service for an active duty retirement.  This request was accepted and upon completion of his DCARNG obligation, the applicant enlisted in the Regular Army, on 8 April 1997. 

7.  On 28 May 1997, Headquarters United States Army Garrison Orders 148-01 directed that the applicant be released from active duty effective 30 November 1997 and placed on the Retired List as a sergeant, pay grade E-5, effective 
1 December 1997.  He had completed 20 years, 3 months, and 23 days of active service with 2 years, 8 months, and 9 days of inactive service.

8.  On 18 October 2007, the applicant submitted a DD Form 149 (Application for Correction of Military Records) requesting that he be advanced on the retired list.
His case was referred to the Army Grade Determination Board.  That board determined that the applicant had successfully served in the rank and grade of captain, O-3E and directed that he be advanced on the Retired List to the rank and grade of captain O-3E with an effective date of advancement of 10 August 2007.   This action was completed on 22 January 2008. 

9.  Army Regulation 600-8-24 (Officer Transfers and Discharges), chapter 6, applies to nondisability retirement of active duty list commissioned and warrant officers on active duty to include Army Guard Reserve (AGR) commissioned and warrant officers who have 20 years or more of active Federal service (AFS).

10.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 12 sets policies and procedures for voluntary retirement of Soldiers because of length of service and governs the retirement of Soldiers (Active Army, ARNGUS, and USAR) who are retiring in their enlisted status.  In pertinent part the regulation states at:

	a. paragraph 12-4, that under Title 10, United States Code (USC), section 3914, a Soldier who has completed 20 but less than 30 years of AFS in the U.S. Armed Forces may be retired at his or her request.  The Soldier must have completed all required service obligations at the time of retirement.  A Soldier who holds a current (emphasis added) commission in the USAR will be transferred to the Retired Reserve in the status he/she elects, if otherwise eligible.

	b.  paragraph 12-6, (Advancement on the retired list) that under Title 10, USC, section 3964, retired Soldiers who have less than 30 years of active service, whose active service plus service on the retired list total 30 years, are entitled to be advanced on the retired list to the highest grade in which they served on active duty satisfactorily.  When these Soldiers complete 30 years of satisfactory service, their military personnel records are reviewed to determine whether service in the higher grade was satisfactory.  For advancement to a commissioned officer grade, the Soldier must have served satisfactorily on active duty in this grade for not less than 6 months.

DISCUSSION AND CONCLUSIONS:

1.  In order for the applicant to have had the option to retire as a commissioned officer in 1997, he would have had to have been on active duty as a commissioned officer or held a Reserve commission at the time of his retirement. 

2.  Since the applicant was not on active duty as a commissioned officer nor did he hold a Reserve commission, he was properly retired in the enlisted grade he held (E-5) as of the date he retired.

3.  The applicant's records were properly reviewed by the Army Grade Determination Board and he was properly advanced on the Retired List upon completion of 30 years of combined active and retired service.

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)                                         AR20080007287



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ABCMR Record of Proceedings (cont)                                         AR20080007287



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