IN THE CASE OF:	  

		BOARD DATE:	  29 October 2009

		DOCKET NUMBER:  AR20090008038 


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 his retired rank as major (MAJ)/pay grade O-4 effective on his 60th birthday and six years of back pay for the difference in pay between pay grade O-3 and O-4.

2.  The applicant states his correct retired rank/grade should be MAJ/O-4.  He states that he understood his rank/grade would be automatically adjusted to MAJ/O-4 when he turned age 65, then he was told it should have changed when he turned age 60.

3.  The applicant provides an Office of the Adjutant General, Reserve Components Personnel and Administration Center, St. Louis, MO, letter, subject: Promotion as a Reserve Commissioned Officer of the Army under Title 10 of the U.S. Code (Army Regulation 135-155), dated 20 November 1978; U.S. Army Reserve Personnel Center (ARPERCEN), St. Louis, Orders F-10-750695, dated 15 October 1990; and ARPERCEN rescission orders, Orders F-10-750695-S, dated 29 July 1993, in support of this 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 show he served in the Regular Army (RA) in an enlisted status from 13 September 1963 to 18 January 1965 when he was discharged to accept a commission.  On 19 January 1965, he was commissioned as a second lieutenant, he was promoted to captain, and he served continuously until he was released from active duty on 11 December 1975.  He was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) after completing 10 years, 10 months, 23 days of active commissioned service.

3.  On 21 March 1977, the applicant enlisted in the RA in the rank/grade of sergeant (SGT)/E-5 while retaining his USAR commission.

4.  While the applicant was serving in the RA in the rank of SGT, he was promoted to the temporary grade of MAJ/O-4 as a Reserve commissioned officer of the Army, effective 17 January 1979.

5.  The applicant remained on active duty in an enlisted status until 31 December 1984 when he was retired in the rank/grade of sergeant first class (SFC)/E-7 by reason of length of service.  He was transferred to the USAR Control Group (Retired) after completing 7 years,
9 months, and 10 days of active enlisted service.

6.  When the applicant submitted his request to retire, he completed a DA Form 2339 (Application for Voluntary Retirement).  Item 11 of that form, “Request Transfer to Retired Reserve in the Following Status” has the options of commissioned, warrant officer, and enlisted.  The applicant elected to be transferred to the Retired Reserve in a commissioned status.

7.  The applicant's DA Form 3713 (Data for Retired Pay), dated 20 September 1988, item 8 (Highest Grade Attained) and item 10 (Retired Pay) shows "O3."

8.  ARPERCEN Orders F-10-750695, dated 15 October 1990 states that effective upon declaration of full mobilization the applicant would be ordered to active duty from retired status.  This order shows his rank as "MAJ."  ARPERCEN Orders     F-10-750695-S, dated 29 July 1993, rescinds Orders F-10-750695.      


9.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) provides for the placement of enlisted Soldiers on the retired list.  Paragraph 12-4 of this regulation, in effect at the time, required that the retirement of a Soldier be in the pay grade he or she holds on the date of retirement.  An enlisted member who holds a current commission in the USAR will be transferred to the Retired Reserve in the status he or she elects.  Dual status in the USAR as a commissioned officer and as an enlisted member is not authorized.  When a member retires in the elected status, the status may not be changed.  Paragraph 12-6 of this regulation indicates that for advancement to a commissioned officer grade on the retired list, the member must have served on active duty in that grade for at least 185 days or 6 calendar months (Title 10, U.S. Code, section 3963).

10.  Title 10, U.S. Code, section 3911, states that regular or reserve commissioned officers may retire as commissioned officers if they have at least 20 years of service, 10 years of which have been active service as a commissioned officer.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's records clearly show that he was promoted to MAJ, USAR while serving on active duty in an enlisted status and that he continued to serve on active duty thereafter in an enlisted status until his release from active duty on 31 December 1984 and placement on the Retired List the following day.  However, there is no evidence that he served on active duty in the rank of MAJ for at least 6 months.

2.  The applicant's records show he served more than 10 years on active duty in a commissioned officer status and his records show he elected to be transferred to the Retired Reserve in a commissioned status.  His DA Form 3713 shows his retired pay grade as O3 and highest grade held as O3.  The applicant's rank of captain on the Retired List is correct as shown.  As such, he is not eligible for advancement on the retired list to the rank of MAJ.
	
3.  Regarding the applicant's reference to an automatic adjustment to his retired pay grade at age 60 or age 65; there is no such law or regulatory policy.  As such, he is not entitled to back pay from the date of his 60th birthday. 

4.  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)                                         AR20090008038



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ABCMR Record of Proceedings (cont)                                         AR20090008038



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