BOARD DATE:	  February 4, 2010

		DOCKET NUMBER:  AR20090010368 


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 adjust his rank from major (MAJ)/O-4 to lieutenant colonel (LTC)/O-5 and the date of rank established as the date he reentered active duty.

2.  The applicant states that he was told by MAJ S____ at the U.S. Army Human Resources Command (HRC) that he would be able to come back into the Army as an LTC/O-5 and not a captain (CPT)/O-3 when he returned to active duty after 11 September.  He states that MAJ S____ told him "to put O-5 in number three section and at worst case you'll be an O-4 for a temporary time."  He concluded by stating he told MAJ S____ that he was a Vietnam Era Veteran coming back to serve after the 11 September tragedy.

3.  The applicant provides copies of his DA Form 61 (Application for Appointment), his DD Form 71 (Oath of Office), a memorandum from the U.S. Total Army Personnel Command (now known as HRC), and a copy of U.S. Army Reserve (USAR) Readiness Command Orders M-203-0001, dated 22 July 2003, as documentary evidence in support of his request.

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 records show he was commissioned as a second lieutenant (2LT)/O-1 in the Regular Army (RA) on 17 December 1980 with prior active duty enlisted service.

3.  The applicant's DA Form 4037 (Officer Record Brief), dated January 1989, shows he was promoted to first lieutenant (1LT)/O-2 effective 17 June 1982 and to CPT/O-3 effective 1 August 1984.

4.  Item 4a (Grade, Rate, or Rank) of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 14 November 1989, shows he was discharged from the RA in the grade of CPT/O-3 on 14 November 1989.

5.  The applicant submitted a copy of his DA Form 61 received by the U.S. Total Army Personnel Command on 1 November 2001 which shows he requested to be appointed as a commissioned officer in the USAR.  Item 3 (Grade for Which Applying) shows the typed grades "O-5 (O-4)" lined through and "O-3" handwritten.  Item 8 (Grade) shows he listed his last held grade as "O-3."

6.  The applicant submitted a copy of a DA Form 71 which shows he was appointed as a CPT/O-3 in the USAR effective 28 August 2002.

7.  The applicant submitted a memorandum from the U.S. Total Army Personnel Command, dated 28 August 2002, subject:  Appointment as a Reserve Commissioned Officer of the Army Under Title 10, U.S. Code, Sections 12201 and 12203, which shows he was appointed as a CPT/O-3 in the USAR for an indefinite term.

8.  Orders M-203-0001, USAR Readiness Command, Fort Jackson, SC, dated 22 July 2003, show the applicant was ordered to active duty as a member of his Reserve unit for a period of 365 days in the grade of CPT/O-3 in support of Operation Enduring Freedom.

9.  On 5 November 2004, the applicant was honorably released from active duty at the completion of his required active service.  The DD Form 214 he was issued shows in item 4a, "CPT"; item 4b (Pay Grade), "O3"; and item 12h (Effective Date of Pay Grade), "1997  05  15."
10.  Orders B-07-504433, HRC, dated 26 July 2005, show that the applicant was promoted to the grade of MAJ/O-4 with a date of rank and effective date of 2 June 2004.

11.  In the processing of this case, an advisory opinion was obtained from the Chief, HRC Reserve Appointments, dated 29 October 2009, which states that since his tenure and even to prior to that, all applicants have been reappointed at their highest grade held.  Army Regulation 135-100 (Army National Guard and Army Reserve Appointment of Commissioned and Warrant Officers of the Army) governs Reserve appointments and this regulation specifies that a reappointment can only be at the highest grade held on active duty.  The advisory opinion continues to state that he cannot address what MAJ S____ may have told the applicant in 2001, but MAJ S____ did not work in the Reserve Appointments Branch.  If the applicant had spoken to anyone in this office he would have been advised that he could only be reappointed as a CPT.  The advisory opinion furthers states that if the applicant did not agree with the rank he was being offered in 2001, he should never have executed the DA Form 71 for reappointment to CPT.  Therefore, the Chief, HRC Reserve Appointments, does not believe that the applicant is entitled to any relief nor does he feel that any injustice was committed against him.

12.  Army Regulation 135-100, paragraph 1-9a(7), provides that a commissioned officer of a Regular Component who is discharged or who resigns may be appointed as a Reserve commissioned officer.  The appointment will be in the grade held as a Regular officer at the time of discharge or resignation with time in grade for promotion purposes equal to the amount of time in the permanent grade.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the highest grade the applicant held while in the RA was CPT/O-3 with a date of rank of 1 August 1984 and that he held this rank/grade at the time of his discharge from the RA on 14 November 1989.  There is no evidence which shows the applicant held the grade of MAJ/O-4 or LTC/O-5 prior to his discharge from the RA on 14 November 1989.

2.  The evidence of record shows that item 3 of the applicant's DA Form 61 was corrected to show the grade of CPT/O-3.  The evidence also shows the applicant accepted his appointment as a CPT/O-3 in the USAR on 28 August 2002.  The applicant was ordered to active duty in support of Operation Enduring Freedom in the grade of CPT/O-3 and was discharged in the same grade.

3.  Army Regulation 135-100 states that a commissioned officer in the RA who is appointed as a commissioned officer in the USAR will be appointed in the permanent grade held as a Regular officer at the time of discharge or resignation from the RA.  Therefore, the applicant is not entitled to have his record corrected to show an adjustment of his rank to MAJ/O-4 or LTC/O-5 in connection with his servicee on active duty in support of Operation Enduring Freedom.

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)                                         AR20090010368



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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