IN THE CASE OF:	  

		BOARD DATE:	        8 January 2009 

		DOCKET NUMBER:  AR20080013870 


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, promotion to the rank of lieutenant colonel/ pay grade O-5, effective upon his 60th birthday.

2.  The applicant states that when he transferred from the Alabama Army National Guard (ALARNG) to accept a promotion to pay grade O-5 in the United States Army Reserve (USAR) he assumed that he would be promoted upon reaching age 60.  As he neared his 60th birthday, "24" (sic) May 2008, he learned that he needed to serve and earn points for 2 years to earn his promotion.  If he had known of this requirement, he could have drilled with the ALARNG to satisfy this requirement. 

3.  The applicant provides a copy of a self-authored letter, dated 8 August 2008; an Alabama State Military Department, Office of the Adjutant General, Montgomery, Alabama memorandum, Subject:  Notification of Eligibility for Retirement at Age 60, dated 22 January 1990; a copy of Alabama State Military Department, Office of the Adjutant General, Montgomery, Alabama Orders
242-003, dated 30 August 1993; and a copy of USAR Personnel Center, St. Louis, Missouri Orders C-02-607775, dated 23 February 1996.

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.  Records in the integrated Personnel Electronic Records Management System (iPERMS) indicate the applicant was born on 25 May 1948.  While a member of the ALARNG, he was selected for mandatory promotion to LTC.

3.  On 30 August 1993, he was separated from the ARNG and transferred to the USAR Control Group (Reinforcement) to accept his promotion to the grade of LTC in the USAR.

4.  The most recent available retirement points statement shows the retirement year ending (RYE) 8 August 1993 as the last year in which the applicant earned 50 or more retirement points.  That document showed four RYEs in which the applicant earned fewer than 50 retirement points and received no credit for service retirement purposes.  The most recent such year was RYE 8 August 1987.

5.  On 23 February 1996, the applicant was transferred to the Retired Reserve.  

6.  On 25 May 2008, the applicant turned age 60.

7.  In the processing of similar cases, the U.S. Army Human Resources Command – St. Louis (USAHRC – STL), Reserve Active Duty Management Directorate has recommended disapproval.  That office noted that, although the individual was selected for promotion to LTC, he never served in the higher graded position and therefore was not authorized to retire in the rank and grade of LTC/O-5.

8.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers other than General Officers), 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 Individual Ready Reserve (i.e., the Control Group (Reinforcement)) and be promoted.  The current regulation states the same.  Both versions of the regulation also stated that a unit officer must be assigned to the higher position to be promoted.

9.  Title 10, U. S. Code, section 12771 states that unless entitled to a higher grade under another provision of law, a reserve commissioned officer who is transferred to the Retired Reserve is entitled to be placed on the retired list in the highest grade in which he served satisfactorily as determined by the Secretary concerned and in accordance with section 1370(d).

10.  Title 10, U. S. Code, section 1370(d) (Retired Grade, Reserve Officers), subsection 1370(d)(3)(A) states that in order to be credited with satisfactory service in an officer grade above major, a person must have served satisfactorily in that grade (as determined by the Secretary of the military department concerned) as a Reserve commissioned officer in an active status for not less than 3 years.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that had he known that he would not be promoted when he reached age 60, he would have continued to drill with the ALARNG in order to qualify for retirement in the higher grade.  However, since he accepted transfer to the USAR to accept the promotion, it appears the ALARNG did not have an LTC position for him to be promoted into.

2.  The applicant does not contend that he was misinformed.  He seems to have simply assumed that he would be retired in the higher grade.

3.  Title 10, U. S. Code, section 1370(d), subsection 1370(d)(3)(A) states that in order to be credited with satisfactory service in an officer grade above major, a person must have served satisfactorily in that grade (as determined by the Secretary of the military department concerned) as a Reserve commissioned officer in an active status for not less than 3 years.  

4.  Not only did the applicant not serve satisfactorily (i.e., earn 50 points each retirement year) in an active status after he transferred to the USAR on             30 August 1993, he was transferred to an inactive status (i.e., the Retired Reserve) on 23 February 1996, after having served in an active status after his promotion to LTC for less than 3 years.

5.  The available evidence is insufficient as a basis for granting the requested relief.


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)                                         AR20080015723



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ABCMR Record of Proceedings (cont)                                         AR20080013870


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