IN THE CASE OF:	  

		BOARD DATE:	  28 May 2009

		DOCKET NUMBER:  AR20090007228 


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 military records to show that he was voluntarily recalled to active duty in the rank of lieutenant colonel (LTC), pay grade O-5.

2.  The applicant states, in effect, that he was promoted in the Regular Army to LTC, pay grade O-5, with a date of rank of 1 July 1983.  He retired on 31 October 1985 and was placed on the Retired List as a major (MAJ), pay grade O-4.  At the time he had completed only 2 years and 4 months in grade as an LTC.  In November 2006 and June 2008, the applicant volunteered for retiree recall.  On both occasions, he requested to be recalled in the rank of LTC.  Despite his requests, the recall nominations were sent to the Assistant Secretary of the Army with the rank of MAJ.  He has now served two deployments and is currently planning his third deployment in October 2009.  He was promoted to LTC as a Regular Army officer under competitive Department of the Army selection criteria in 1983 and served satisfactorily in that rank as evidenced by his receipt of the Legion of Merit upon his retirement in 1985.  In 2006 and 2007, while assigned in Iraq as a MAJ, he served in an LTC position.  During 2008 and 2009, he served as a MAJ while filling an LTC position in Kuwait.  The applicant further states that he wants his reinstatement of rank to be retroactive to November 2006.

3.  The applicant provides, in support of his application, copies of his DD Forms 214 (Certificate of Release or Discharge from Active Duty) ending on 


31 October 1985 and 21 January 2008, Officer Record Brief (ORB), retirement orders, recall orders with amendment, separation orders, memorandum of recommendation, letter of congratulations, and correspondence and electronic mail concerning his reinstatement of rank.

CONSIDERATION OF EVIDENCE:

1.  At the time of his application, the applicant was serving as a recalled Reserve officer in the rank of MAJ, pay grade O-4, Engineer Corps, at Fort McPherson, Georgia.  He was voluntarily recalled from a retired status to serve as an engineer officer.

2.  On 3 February 1967, the applicant entered the Regular Army and served through a series of assignments.  He was promoted to LTC with an effective date and date of rank of 1 July 1983.

3.  Orders S184-3, United States Army Military Personnel Command [now known as the Human Resources Command] Alexandria, Virginia, dated 20 September 1985, retired the applicant from active service, released him from assignment and duty, and on 31 October 1985 placed him on the Retired List in the rank of MAJ, pay grade O-4.

4.  The applicant's DD Form 214 ending on 31 October 1985 shows that he had completed 20 years and 5 days of creditable active duty.

5.  Orders M-09-602424, United States Army Human Resources Command, St. Louis, Missouri, dated 26 September 2006, ordered the applicant to active duty in a retired status for a period not to exceed 391 days for the purpose of partial mobilization in the rank of MAJ, pay grade O-4, in support of Operation Iraqi Freedom.

6.  Memorandum, Multi-National Force-Iraq, dated 2 June 2007, requested reinstatement of the applicant's rank of LTC based on his previous promotion to LTC.  The unsigned memorandum shows the signature block of a brigadier general.

7.  Orders 011-2208, United States Army Infantry Center, Fort Benning, Georgia, dated 11 January 2008, released the applicant from active duty and returned him to a retired status effective 21 January 2008.



8.  The applicant's DD Form 214 ending on 21 January 2008 shows his rank as LTC, pay grade O-5, and that he had completed 1 year, 1 month, and 26 days of creditable active duty during this period of active duty service.

9.  Orders A-08-810522, United States Army Human Resources Command, St. Louis, Missouri, dated 6 June 2008, recalled the applicant in the rank of MAJ, pay grade O-4, to active duty from a retired status with a report date of 15 June 2008.  He was voluntarily recalled to serve as an engineer officer.

10.  Memorandum, United States Army Central, Fort McPherson, Georgia, dated 22 September 2008, requested reinstatement of the applicant's rank of LTC based on his previous promotion to LTC and his recently completed 12-month deployment to Iraq.  The unsigned memorandum shows the signature block of the Director of Operations, a brigadier general,.

11.  Army Regulation 600-8-24 (Officer Transfers) provides, in pertinent part, that a commissioned officer must serve on active duty for 3 years in grade to retire in a rank above MAJ and below lieutenant general.  However, the Secretary of Defense has authorized the Secretary of the Army to waive this requirement in individual cases involving extreme hardship or exceptional or unusual circumstances.

12.  Army Regulation 601-10 (Management and Mobilization of Retired Soldiers) provides, in pertinent part, that retired Soldiers ordered to active duty will be ordered to active duty in their current retired grade on the Retired List unless otherwise directed by Headquarters, Department of the Army.  A retired Soldier who had previously served on active duty satisfactorily, as determined by the Secretary of the Army, in a grade higher than that Soldier's retired grade, may be ordered to active duty in the highest grade held satisfactorily.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to show that he was recalled to active duty in the rank of LTC, pay grade O-5.

2.  The evidence of record clearly shows that the applicant was promoted to the rank of LTC, pay grade O-5, as a member of the Regular Army on 1 July 1983.  He subsequently requested and was granted a voluntary retirement effective 


31 October 1985.  He had served in the rank of LTC for a period of 2 years and 4 months.  Consequently, he was placed on the Retired List in the rank of MAJ, pay grade O-4, because he had not fulfilled the 3-year service requirement.

3.  There is no available evidence showing that the applicant was forced or otherwise made to retire prior to completing 3 years time in grade as an O-5.

4.  There is no available evidence showing that he was suffering an extreme hardship or had any exceptional or unusual circumstances that would have justified placing him on the Retired List in the rank of LTC.  Furthermore, there is no evidence showing that he made any request for such consideration.

5.  The evidence clearly shows that the applicant was voluntarily recalled to active duty as a retiree in his retired rank of MAJ, pay grade O-4.  This was in accordance with the governing regulation.  It is presumed that this is the grade in which Headquarters, Department of the Army, determined he should be utilized.

6.  The evidence shows that his immediate chain of command, on two occasions, and in two separate commands, requested reinstatement of his rank of LTC (although two of the memoranda requesting reinstatement are unsigned).  However, there is no evidence showing that either of these requests was approved.

7.  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 the aforementioned requirement.

8.  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.



      ____________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)                                         AR20090007228



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ABCMR Record of Proceedings (cont)                                         AR20090007228



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