IN THE CASE OF:	  

		BOARD DATE:	 20 April 2010 

		DOCKET NUMBER:  AR20090016205 


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 he retired from active duty on 30 June 2003 (vice 30 June 2001).

2.  The applicant states he was selected for promotion to lieutenant colonel (LTC) by a Special Selection Board (SSB) in February 2002, which was after he had retired from active duty.  Based on his application, the Army Board for Correction of Military Records (ABCMR) corrected his records to show he retired in the rank/grade of LTC/O-5.

	a.  He states he was so overwhelmed by the entire process concerning "Fifth Amendment Equal Protection and Due Process" and the Army's settlement of his case by agreeing to conduct SSBs, that he didn't think everything through.

   b.  He states, in hindsight, had he been selected for promotion to LTC in 1998 he would most certainly have stayed on active duty until he had completed
22 years of active service in order to achieve the maximum pay for that rank.  In fact, he adds it's quite probable he might have stayed on active duty even longer given the United States' invasion of Iraq in March 2003. 

3.  The applicant provides a copy of ABCMR Docket Number AR2002071024, dated 29 October 2002.


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 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 was appointed as a Regular Army commissioned officer on
27 May 1981.  He was promoted to the rank/grade of major (MAJ)/O-4, effective
1 May 1993.

3.  Headquarters, U.S. Total Army Personnel Command, Alexandria, VA, memorandum, dated 14 February 2001, subject:  Selection for Continued Military Service on Active Duty, shows The Adjutant General of the Army notified the applicant that under previous policy he was required to retire on 30 June 2001.  However, the Secretary of the Army approved a recommendation by an SSB to continue the applicant in his present grade [MAJ] on active duty beyond retirement eligibility.

   a.  The selective continuation afforded him the opportunity to continue service on active duty until he reached 24 years of active commissioned service.

   b.  If the applicant accepted the additional continuation period, he would incur an active duty service obligation of 2 years and continue to receive consideration for promotion by Department of the Army promotion selection boards.

   c.  If he declined continued service on active duty, he would be retired on his previously established mandatory retirement date (i.e., 30 June 2001).

4.  Headquarters, Department of the Army, Military Personnel Service Center, Washington, DC, Orders, dated 15 February 2001, show the applicant voluntarily retired from active duty in the rank of MAJ, effective 30 June 2001 and he was placed on the retired list on 1 July 2001.


5.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant entered active duty this period on 27 May 1981 and he was honorably retired on 30 June 2001 based on sufficient service for retirement.  At the time he had completed 20 years, 1 month, and 4 days of net active service this period.

6.  On 28 February 2002, the applicant was notified that an SSB had selected him for promotion to LTC under the criteria and instructions established by the Fiscal Year 1998 Promotion Selection Board that adjourned in April 1998.  He was promoted to LTC with a date of rank (DOR) of 30 July 1998.

7.  Incorporated herein by reference is ABCMR Docket Number AR2002071024, dated 29 October 2002.

	a.  The applicant requested that his retirement grade be adjusted from MAJ to LTC with a DOR of 30 July 1998.  He also requested extension of his retirement date from 30 June 2001 to 31 July 2001 in order for him to meet the 36-month time-in-grade (TIG) requirement to permit him to retire as a LTC.

   b.  The ABCMR corrected the applicant's records to show he was promoted to LTC with a DOR of 30 July 1998 and waived the TIG requirement to permit him to retire as a LTC on 30 June 2001.  He was also authorized all back pay and allowances due as a result of the correction of his records.

8.  A DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty), dated 12 March 2003, shows the applicant's rank, grade, and effective date of pay grade shown on his [30 June 2001] DD Form 214 were corrected to show he retired from active duty as a LTC/O-5 with a DOR of 30 July 1998, and he was placed on the retired list in the grade of O-5.

9.  Army Regulation 600-8-24 (Officer Transfers and Discharges) prescribes policies and procedures governing the transfer and discharge of Army officer personnel.  Chapter 6 (Retirements), paragraph 6-16 (Voluntary retirement in lieu of mandatory retirement or in conjunction with the scheduled release from active duty) shows that a retirement eligible officer who is twice nonselected for promotion to the grade of lieutenant colonel or below may retire.  The officer's effective date of retirement will not be later than the mandatory separation date.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his records should be corrected to show he retired from active duty on 30 June 2003 because he was selected by an SSB for 
promotion to LTC subsequent to his retirement from active duty.  He also contends he would have stayed on active duty until he had completed 22 years of active service in order to achieve the maximum pay for that rank.

2.  The applicant's voluntary retirement on 30 June 2001 under the provisions of Army Regulation 600-8-24 was administratively correct, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.  In addition, subsequent to the applicant's retirement his records were properly updated to show his promotion to LTC, he was authorized payment in grade of O-5, and he was placed on the retired list in the grade of O-5.

3.  The applicant's contention that he would have remained on active duty until he completed 22 years of service for pay purposes was considered.

   a.  On 14 February 2001, the applicant was offered the opportunity to continue service on active duty until he reached 24 years of active commissioned service.  Records also show he would have incurred an active duty service obligation of 2 years (i.e., 22 years of active service) and continue to receive consideration for promotion by Department of the Army promotion selection boards, if he accepted continuation on active duty.

   b.  The applicant declined the opportunity to continue to serve on active duty.

   c.  On 15 February 2001, orders were published voluntarily retiring the applicant from active duty in the rank/grade of MAJ/O-4, effective 30 June 2001.

   d.  The applicant's contention that he would have remained on active duty until he completed 22 years of service in order to achieve the maximum pay in the rank of LTC is understandable.  However, the applicant was afforded the option to continue to serve in the rank of MAJ until he completed at least
22 years of service and up to a total of 24 years, but he declined.  In addition, following 11 September 2001, had the applicant truly wanted to continue to serve, he undoubtedly could have volunteered to be recalled to active duty.  Thus, the applicant's speculative argument appears to be without merit.  Moreover, there is no error in this case.  Therefore, the applicant is not entitled to correction of his records to show he retired from active duty on 30 June 2003.

4.  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)                                         AR20090016205



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ABCMR Record of Proceedings (cont)                                         AR20090016205



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