IN THE CASE OF:
BOARD DATE: 5 March 2009
DOCKET NUMBER: AR20080015394
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, correction of his records to show he retired in the rank of brigadier general (BG), pay grade O-7, instead of the rank of colonel, pay grade O-6.
2. The applicant states, in effect, that he is currently an Active Guard Reserve retiree (colonel) and he wishes to have his records corrected to show his highest rank held as that of BG in order to receive retired pay as a BG upon reaching age 60.
3. In support of his application, the applicant provides copies of his Notification of Eligibility for Retired Pay memorandum, BG promotion orders, BG Federal Recognition orders, Washington Army National Guard (WAARNG) retirement orders, DD Form 214 (Certificate of Release or Discharge from Active Duty), and DD Form 215 (Correction to DD Form 214).
CONSIDERATION OF EVIDENCE:
1. The applicant's military records show he was appointed in the WAARNG as a first lieutenant, on 8 May 1981, with prior enlisted and warrant officer service.
2. The applicant was issued a Notification of Eligibility for Retired Pay memorandum on 18 May 1999.
3. The applicant was promoted to colonel effective 7 July 1999.
4. Office of The Adjutant General, WAARNG, Orders Number 079-004, dated 11 May 2004, were published promoting the applicant to BG effective 1 December 2003. The orders also stated the applicant would not be paid as a BG until Federal Recognition was confirmed.
5. National Guard Bureau, Special Order GO-182-01, dated 30 June 2004, was published extending the applicant Federal Recognition and promotion to the rank of BG effective 3 July 2004.
6. Office of The Adjutant General, WAARNG, Orders Number 079-004, dated 19 March 2008, were published releasing the applicant from the WAARNG, in the retired rank of colonel, effective 30 June 2008, and placing him on the retired list effective 1 July 2008.
7. The applicant was honorably separated from active duty, in the rank of colonel, on 30 June 2008, for sufficient service for retirement, and issued a DD Form 214. He was credited with completing 20 years, 11 months, and 2 days of net active service.
8. The applicant was issued a DD Form 215, dated 27 August 2008, correcting his rank to BG, his pay grade to O-7, and his effective date of rank to 3 July 2004.
9. The applicant will reach the age of 60 on 24 February 2009.
10. A staff member of the Retirements and Annuities Branch, Human Resources Command, St. Louis, Missouri verified that based on the applicant's serving satisfactorily in the rank of BG prior to retirement he was issued a DD Form 215 to correct his grade. Since this was his highest grade satisfactorily held, he is entitled to retired pay in that grade.
11. Title 10, United States Code, Section 13701(1)(d) specifies that a commissioned officer who retires under any provision of law may 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. A person who has completed at least six months of satisfactory service in grade and is transferred from an active status or discharged as a Reserve commissioned officer due to the provisions of law requiring that transfer or discharge due to the person's age or years of service may be credited with satisfactory service in the grade in which serving at the time of such transfer or discharge, notwithstanding failure of the person to complete three years of service in that grade.
DISCUSSION AND CONCLUSIONS:
1. The evidence of record shows the applicant was extended Federal recognition and promoted to BG effective 3 July 2004. He was separated from active duty for sufficient service for retired pay effective 30 June 2008 and issued a DD Form 214. On 19 March 2008, the WAARNG issued orders releasing the applicant from the Army National Guard (ARNG) in the retired rank of colonel with an effective date of 30 June 2008 and placing him on the retired list in that rank effective 1 July 2008. On 27 August 2008, he was issued a DD Form 215 which corrected his rank to BG, pay grade O-7, and his effective date of rank to 3 July 2004.
2. Based on the foregoing, the orders placing the applicant on the retired list in the rank of colonel should be voided and corrected by showing he retired in the highest rank that he held which was the rank of BG, pay grade O-7.
3. In view of the foregoing, the applicants WAARNG and Department of the Army records should be corrected as recommended below.
BOARD VOTE:
___x____ ___x____ ____x___ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all state ARNG records of the individual concerned should be corrected by:
a. voiding Orders Number 079-004, dated 19 March 2008, releasing the applicant from the WAARNG in the retired rank of colonel, effective 30 June 2008 and placing him on the retired list effective 1 July 2008 and declaring them to be of no force or effect; and
b. issuing new orders releasing him from the WAARNG in the retired rank and pay grade of BG, O-7, effective 30 June 2008 and placing him on the retired list in that rank effective 1 July 2008, for entitlement to retired pay in the rank and pay grade of BG, O-7.
2. That the Defense Finance and Accounting Service audit the applicant's records and pay to him any monies due as a result of the above corrections.
_______ _ __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.
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