IN THE CASE OF:
BOARD DATE: 6 January 2009
DOCKET NUMBER: AR20080017144
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 separation document, DD Form 214, be corrected to show he was released from active duty as a captain, pay grade
0-3E. He also requests that he be given retroactive benefits.
2. The applicant states that he served without a break in service from 20 August 1987 to 31 October 2007. He started his military career in an enlisted status, was promoted to pay grade E-7, then served as a warrant officer, and then served as a commissioned officer, achieving the rank of captain. When his retirement was approved, he was told that he had to resign as an officer three days prior to retirement and reenlist as a sergeant first class (SFC), pay grade
E-7. He was then placed on the Retired List and given retired pay in pay grade E-7.
3. The applicant does not provide any additional documents in support of his request.
CONSIDERATION OF EVIDENCE:
1. The applicant's military records show that he enlisted in the Regular Army on 20 August 1987, was promoted to pay grade E-7, and was honorably released from active duty on 26 January 1999 to accept an appointment as a warrant officer. He served as a warrant officer until 20 December 2001, the date he was released from active duty to accept a commission as a second lieutenant. He had served 2 years, 10 months, and 24 days as a warrant officer. He served as a commissioned officer and was promoted to captain.
2. On 1 March 2007, the Human Resources Command, Alexandria (HRC-A) approved the applicant's request to retire. In that approval the HRC-A authorized the applicant's reenlistment as an SFC and directed that the applicant be reenlisted on 30 October 2007 and placed on the retired List effective 1 November 2007.
3. Accordingly, on 29 October 2007 the applicant was honorably discharged for miscellaneous/general reasons in the rank of captain. On 30 October 2007, the applicant enlisted in the Regular Army in pay grade E-7, was honorably released from active duty on 31 October 2007, for years of service in pay grade E-7, and was placed on the Retired List the following day in pay grade E-7.
4. Title 10, U. S. Code, section 3911, Twenty years or more: regular or reserve commissioned officers, states 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.
5. Title 10, U. S. Code, section 3961(b), states that, unless entitled to a higher retired grade under some other provision of law, a Regular or Reserve of the Army not covered by section 3961(a) (which discusses commissioned officers) who retires other than for physical disability retires in the regular or reserve grade that he holds on the date of his retirement.
6. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. In pertinent part, it provides that retired Soldiers, when their 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 satisfactorily served on active duty. When these Soldiers complete 30 years of service, their military personnel records are reviewed to determine whether service in the higher grade was satisfactory.
7. On 3 September 2008, the Army Grade Determination Review Board determined that the highest grade in which the applicant served satisfactorily for the purpose of computation of retired pay was O-3E (captain).
DISCUSSION AND CONCLUSIONS:
1. Since the applicant did not have 10 years commissioned service (he had 5 years, 10 months and 9 days as a commissioned officer, and 2 years, 10 months and 24 days as a warrant officer for a total of 8 years, 9 months and 3 days) he was not entitled by law to retire as a captain.
2. In order to allow the applicant to retire, the HRC-A directed that he be discharged as an officer and enlisted. That was the only way the applicant could be retired since he did not have 10 years of commissioned service.
3. However, the applicant will be advanced on the Retired List when he achieves a total of 30 years of service (including his time on the Retired List).
4. In view of the foregoing, there is no basis to grant the applicant's request.
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) @#!CASENUMBER
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20080017144
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