IN THE CASE OF:	  

		BOARD DATE:	        19 MARCH 2009

		DOCKET NUMBER:  AR20080019138 


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 correction of his records to show that he retired from the Army in the rank of captain with a date of rank retroactive to 20 November 1957 and that his retired pay be adjusted accordingly.

2.  The applicant states that although his military service was continuous (July 1942 through November 1962), he was never advised by his superiors of this promotion to captain in 1957.  He states that he also never received orders promoting him to captain and, therefore, he continued to serve in the rank of first lieutenant until his retirement.  He goes on to state that he had advanced in rank from private to first sergeant and that he continued through Officer Candidate School (OCS).  He states that after he completed OCS he was commissioned as a second lieutenant and subsequently promoted to first lieutenant.  He states that each time that he was advanced in rank he received written orders and he almost always changed duty assignments.  He states that he was never issued any written or oral orders regarding his promotion to captain, nor did he ever change duty assignment.  He states that his promotion to captain came to his attention on 31 May 1996 when he was issued a military identification card reflecting the change in his rank.  He states that his promotion was even more confusing because Special Orders Number 259 indicate that he was promoted while he was a member of the U.S. Army Reserve (USAR) not on active duty.  He states that he believes he should be compensated for the differential loss in active duty and retired pay retroactive to 20 November 1957.

3.  The applicant provides an addendum to his DD Form 149 (Application for Correction of Military Records), a copy of a notification for promotion to the rank of captain dated 29 April 1958, a copy of his certificate for promotion to the rank of captain, and a copy of Special Orders Number 259 dated 24 October 1962 in support of his application.

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’s military records are not available to the Board.  This case is being considered using reconstructed records which primarily consist of the documentation submitted by the applicant.

3.  The available records indicate that the applicant initially entered the Army on 6 August 1942 and remained on active duty and was advanced through the ranks to master sergeant (E-8).

4.  The available records do not show the date that the applicant completed OCS; however, the records do indicate that he did successfully complete OCS, that he accepted a commission in the USAR, and that he was promoted while he was a member of the USAR to the rank of captain effective 20 November 
1957.

5.  On 24 October 1962, Special Orders Number 259 were published releasing the applicant from active duty in the rank of first sergeant (E-8) effective 30 November 1962 and transferring him to the USAR (Retired Reserve) on 1 December 1962.  At the time, he held the rank of first sergeant and had completed 20 years, 3 months, and 25 days of creditable years of active service for retirement.

6.  On 13 December 1973, Letter Orders Number 2,008,835 were published advancing the applicant on the Retired List from first sergeant to first lieutenant effective 24 August 1972.

7.  In a USAFSA Form 20-74 (Request for Information and/or Reply to Correspondence) from the Retired Pay Division dated 10 May 1974, the applicant was informed that he received supplemental payments totaling $1,165.08, minus Federal Income Tax Withholdings, for underpayment during the period 24 August 1972 through 31 March 1974.

8.  On 9 March 2009, an Army Review Boards Agency analyst contacted the Reserve Retired Pay Division and was informed that the applicant is currently receiving retired pay in the rank of first lieutenant.

9.  Title 10, U.S. Code, section 3961, provides the legal authority and general rule pertaining to retirement grades.  It states, in pertinent part, that unless entitled to a higher retired grade under some other provision of law, a Regular or Reserve member of the Army who retires other than for physical disability retires in the Regular or Reserve grade that he/she holds on the date of his/her retirement.  Other than allowing for the advancement of enlisted members on the Retired List under the provisions of Title 10, U.S. Code, section 3964, the law provides no "grandfather" provisions that would authorize retirement in the highest grade held.

10.  Title 10, U.S. Code, section 3964, provides the legal authority for advancement on the Retired List.  It states, in pertinent part, that retired enlisted Soldiers are entitled, when their active service plus service on the Retired List totals 30 years, to be advanced on the Retired List to the highest grade they held and in which they satisfactorily served while on active duty as determined by the Secretary of the Army.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show that he retired in the rank of captain with a date of rank retroactive to 20 November 1957, and that his retired pay should be adjusted accordingly.

2.  While the evidence of record confirms that the applicant was promoted in the USAR to the rank of captain, there is insufficient evidence that shows he met the criteria for retirement in the rank of captain.  The available records show that he was serving in the rank of first sergeant at the time of his REFRAD and based on Letter Orders Number 2,008,835 and the information obtained from the Reserve Retired Pay Services, it is reasonable to presume that at some point during his military career he satisfactorily served on active duty in the rank of first lieutenant, as he is currently being paid in that rank.

3.  In accordance with the applicable law, retired enlisted Soldiers are entitled, when their active service plus service on the retired list totals 30 years, to be advanced on the Retired List to the highest grade they held and in which they satisfactorily served while on active duty as determined by the Secretary of the Army.  However, while the available records show that he was promoted to the rank of captain on 20 November 1957 while he was a member of the USAR, there is no evidence in the available records, nor has the applicant submitted any evidence, to show that he ever satisfactorily served on active duty in the rank of captain as required by law.

4.  In order to justify correction of a military record the applicant must show, 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.

5.  In view of the foregoing, there is no basis for granting 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.



      __________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)                                         AR20080019138



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ABCMR Record of Proceedings (cont)                                         AR20080019138



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