BOARD DATE:	  12 January 2010

		DOCKET NUMBER:  AR20090000842 


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 his record be corrected to show he completed 21 years of qualifying service for Reserve retirement as of 8 May 2002 and that his rank of major (MAJ) be restored from that date.

2.  The applicant states, in effect, his record should be corrected to reflect he had over 21 years of qualifying service at the time he resigned his commission and was discharged in 2002, and that his Army Reserve Personnel Command (ARPC) Form 249 and record should be corrected to show his rank as MAJ.

3.  The applicant provides release from active duty (REFRAD) orders, a DD Form 214 (Certificate of Release or Discharge from Active Duty), and an ARPC Form 249E 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 record shows he served in an active duty enlisted status for 1 year, 6 months and 8 days from 22 September 1970 through 29 March 1972.  He also served in an enlisted status in the U.S. Army Reserve (USAR) from 30 March 1972 through 21 September 1975.

3.  On 18 December 1982, the applicant was appointed as a second lieutenant in the USAR.  He was promoted to first lieutenant on 1 July 1984, to captain on 1 July 1986, and to MAJ on 30 June 1993.

4.  The record shows the applicant was not selected for promotion to lieutenant colonel (LTC) in 2000 and 2001 and that he was honorably discharged from the USAR based on twice non-selection for promotion to LTC on 8 May 2002.

5.  On 20 June 2003, the applicant enlisted in the USAR for 5 years in the rank of sergeant and on 12 March 2005 he was promoted to staff sergeant.

6.  On 6 September 2007, the applicant was issued a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  He was notified that he had completed the required years of qualifying Reserve service and was eligible for retired pay upon application at age 60.

7.  On 18 August 2008, the 90th Regional Readiness Command Inspector General (IG) responded to an inquiry from the applicant requesting reinstatement of his commission and correction of his ARPC Form 249-E.  The IG indicated a thorough inquiry into the matter resulted in a determination that the applicant had been discharged based on his twice non-selection for promotion to LTC and it appeared that at the time of his discharge he had over 21 years of qualifying service for non-regular retirement.

8.  Effective 31 January 2010, the applicant will be transferred to the Retired Reserve.

9.  The applicant's official military personnel file (OMPF) contains a Reserve Personnel Accounting Statement (RPAS) that shows the applicant completed a total of 21 years, 8 months, and 14 days of qualifying service for non-regular retirement at age 60.  This document further shows that as of 19 June 2003, the last date he held a commissioned officer status, he had completed 15 years, 5 months, and 21 days of qualifying service for non-regular retirement.

10.  In connection with the processing of this case, an advisory opinion was obtained from the U.S. Army Human Resources Command (HRC), St. Louis, Missouri, Transition and Separations Branch.  This opinion indicates that a review of the applicant's ARPC Form 249 revealed he had less than 18 years of commissioned service at the time of his discharge on 8 May 2002.

11.  On 7 March 2009, the applicant responded to the HRC advisory opinion and stated, in pertinent part, that he was requesting correction of his ARPC Form 249 to show he completed at least 18 years of qualifying service at the time of his discharge from the USAR on 8 May 2002.  He stated that he resigned his commission in error thinking it was the only way he could get the points he needed in order to qualify for non-regular retirement.

12.  The applicant further claimed that after his ARPC Form 249 is corrected, it would show he had the 18 years of qualifying necessary to be retained as a commissioned officer after his second non-selection for promotion to LTC, as is supported by the IG findings of August 2008.

13.  The applicant provides an ARPC Form 249, dated 29 August 2008, which shows he had a total of 23 years, 10 months, and 17 days of qualifying service for non-regular retirement as of 20 June 2008.  It further shows that as of 8 May 2002, he would have had over 18 years of qualifying service.

14.  A statement in the applicant's OMPF from the HRC Personnel Actions and Entitlements Branch, dated 30 July 2009, indicates the completed service shown on the applicant's 2008 ARPC Form 249 was erroneous.  It further indicates that a thorough review of the applicant's record and retirement points history confirmed he had been credited with 15 years, 5 months, and 21 days of qualifying service as of 8 May 2002, the date of his discharge as a commissioned officer.  It further indicates the applicant will be entitled to receive retired pay at age 60 as a MAJ.

15.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers other than General Officers) prescribes policy and procedures used for selecting and promoting commissioned officers (other than commissioned warrant officers) of the Army National Guard of the United States and of commissioned and warrant officers of the USAR.  Section V, chapter 4 contains guidance on non-selection for promotion.  Paragraph 4-30 contains mandatory consideration non-selection policy and paragraph 4-30b states, in pertinent part, that an officer who twice fails to be selected for promotion to the grade of LTC will be removed from active status unless retained under any other provision of law.  Paragraph 4-33 states, in pertinent part, that a MAJ who has failed to be selected for promotion to LTC for the second time will be separated unless the officer can be credited with 18 or more but less than 20 years of qualifying service for retired pay.

16.  Title 10, U.S. Code, section 12731, provides the legal authority and eligibility for non-regular Reserve retirement and/or age and service requirements for receipt of retired pay at age 60.  It states, in pertinent part, that a member who completed at least 20 years of qualifying Reserve service is eligible to apply for and receive retired pay at age 60.

17.  Title 10, U.S. Code, section 1406, contains guidance on computation of retired pay.  It states, in pertinent part, that in the case of a person who is entitled to non-regular service retirement under the provisions of Title 10, U.S. Code, section 12731, the retired pay will be based on the monthly basic pay, determined at rates applicable on the date when retired pay is granted, of the highest grade held satisfactorily by the person at anytime in the Armed Forces.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his record should be corrected to show he had at least 21 years of qualifying service at the time of his 8 May 2002 discharge and was retained as a commissioned officer was carefully considered.  However, there is insufficient evidence to support this claim.

2.  By law and regulation, an officer who twice fails to be selected for promotion to LTC is required to be removed from an active status.  Retention to obtain 20 years of qualifying service is only authorized for members who have completed at least 18 but less than 20 years of qualifying service at the time of their second non-selection for promotion.

3.  The evidence of record shows that on 8 May 2002, when he was discharged as a commissioned officer of the USAR, the applicant had completed less than 16 years of qualifying service for non-regular retirement, as evidenced by the RPAS and HRC Personnel Actions and Entitlements statement on file in his OMPF.  As a result, notwithstanding the conflicting information contained on the 2008 ARPC Form 249 he received and the IG letter that was based on this form, he clearly had not completed the 18 years necessary to be retained in an active status as a commissioned officer after his second non-selection for promotion to LTC in 2002.  

4.  However, the applicant is advised that under the governing law, his non-regular retired pay and placement on the Retired List at age 60 will be in the highest grade he satisfactorily held at any time in the Armed Forces, which in his case is MAJ.  Therefore, although the applicant is not eligible for the relief requested, his retired grade will correspond to his final commissioned officer grade of MAJ.  As a result, he will suffer no loss of retired pay or injustice as a result of his reversion and completion of qualifying service in an enlisted status.

5.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board 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.

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)                                         AR20090000842



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ABCMR Record of Proceedings (cont)                                         AR20090000842



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