BOARD DATE: 8 December 2009
DOCKET NUMBER: AR20090010275
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 rank on the Retired List be changed from master sergeant (MSG) to captain (CPT).
2. The applicant states that he has no doubt that he served 184 days on active duty that counted towards section 1405 time for retirement as a CPT.
3. The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty); his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service); excerpts from his military records; and an internet printout of Title 10, U.S. Code, section 3961 in support of his application.
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Army National Guard (ARNG) on 9 September 1963.
2. He was appointed as a commissioned officer on 21 August 1967 and he was promoted to CPT on 10 October 1975. He was honorably discharged from his commissioned status on 29 August 1983 due to his enlistment in the ARNG.
3. The applicant's ARNG Current Annual Statement shows that while serving as a commissioned officer in the ARNG, he was awarded 15 active duty points a year except for Retirement Year Ending (RYE) 8 September 1975 (when he earned 20 points). In the following years he served 34, 23, 23, 22, 21, 23, 21,
and 32 days of active duty service as a commissioned officer, for a total of 327 days of active duty as a commissioned officer, of which 199 days were spent on active duty as a CPT.
4. The applicant entered active duty as a full-time National Guard duty enlisted Soldier on 6 September 1983. He was honorably retired in the rank of MSG on 30 September 2005 and he was placed on the Retired List for years of service the following day.
5. Title 10, U.S. Code, section 3964, states, in pertinent part:
a. Each retired member of the Army covered by subsection b who is retired with less than 30 years of active service is entitled, when his active service plus his service on the retired list totals 30 years, to be advanced on the retired list to the highest grade in which he served on active duty satisfactorily (or, in the case of a member of the National Guard, in which he served on full-time duty satisfactorily), as determined by the Secretary of the Army.
b. This section applies to -
(1) warrant officers of the Army;
(2) enlisted members of the Regular Army; and
(3) reserve enlisted members of the Army who, at the time of retirement, are serving on active duty (or, in the case of members of the National Guard, on full-time National Guard duty).
6. On 29 August 2008, the Army Grade Determination Review Board (AGDRB) informed the applicant that he was not eligible for advancement on the Retired List to a commissioned rank since he did not serve on active duty or full-time National Guard duty for a period of more than 6 months.
7. In response to a request for reconsideration, the AGDRB responded on 2 June 2009 by clarifying its earlier response. In this clarification the AGDRB stated that in order to be advanced on the Retired List to a commissioned rank, he would have had to have served at least 6 months of full-time National Guard duty in accordance with Title 10, U.S. Code, section 3964.
8. Title 10, U.S. Code, section 101 (Definitions), states that (5) the term "full-time National Guard duty" means training or other duty, other than inactive duty, performed by a member of the Army National Guard of the United States or the
Air National Guard of the United States in the member's status as a member of
the National Guard of a State or territory, the Commonwealth of Puerto Rico, or the District of Columbia under section 316, 502, 503, 504, or 505 of title 32 for which the member is entitled to pay from the United States or for which the member has waived pay from the United States.
DISCUSSION AND CONCLUSIONS:
1. The intent of Title l0, U.S. Code, section 3964, is that each enlisted retired member of the Army who is retired with less than 30 years of active service is entitled, when his active service plus his service on the retired list totals 30 years, to be advanced on the retired list to the highest grade in which he served on active duty and/or on National Guard full-time duty satisfactorily, as determined by the Secretary of the Army. The prior communications from the AGDRB improperly interpreted the applicant to be ineligible because he served his highest grade on active duty and not National Guard full-time duty.
2. The applicant served a total of 327 days of active duty in a commissioned status, of which 199 days were served as a CPT.
3. As such, the applicant has served at least 6 months on active duty as a CPT; therefore, he is entitled as an operation of law to be advanced on the Retired List to the rank of captain when his time on the Retired List plus his active duty time equals 30 years, in accordance with Title 10, Section 3964.
BOARD VOTE:
___x____ ___x____ ___x____ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:
a. showing that the highest grade the applicant held in accordance with Title 10, section 3964 is "captain"; and
b. advancing him on the Retired List to the rank of "captain" when his time on the Retired List plus his active duty time equals 30 years.
___________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.
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