IN THE CASE OF:	

		BOARD DATE:	  13 April 2010

		DOCKET NUMBER:  AR20090016511 


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, in effect, that he be advanced on the retired list to the rank and pay grade of major, O-4.

2.  The applicant states his rank and retired pay should be corrected to accurately reflect his highest Reserve rank.  He contends he was not retired at the highest Reserve rank he achieved (major), he continually and consistently maintained a Reserve officer status, and he met all Officer Evaluation Report (OER) and training requirements for rank progression.

3.  The applicant provides a Statement of Service; numerous OERs; an academic transcript; a Certificate of Course Completion; a DA Form 1059 (Service School Academic Evaluation Report); a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 
30 September 1997; and discharge orders in support of his 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 enlisted in the Regular Army on 24 February 1969 and was released from active duty on 8 December 1971 and transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his remaining service obligation.

3.  On an unknown date, the applicant enlisted in the Army National Guard (ARNG) and was ordered to active duty on 7 August 1979 for training (Infantry Officer Basic Course).  He was honorably discharged from the ARNG on
15 October 1979.  On 16 October 1979, while on active duty, he was appointed a second lieutenant in the California Army National Guard (CAARNG).  On
11 February 1980, he was released from active duty and transferred to the USAR.  On 15 August 1980, he was separated from the CAARNG and transferred to the USAR Control Group (Reinforcement).

4.  The applicant enlisted in the Regular Army on 26 January 1981 and remained on active duty in an enlisted status through continuous reenlistments.

5.  The applicant was promoted to major in the USAR on 13 October 1993.

6.  On 30 September 1997, the applicant retired in the rank of staff sergeant.

7.  Under the provisions of Army Regulation 600-39, the Dual Component Program provided for individuals serving in the Regular Army in an enlisted or warrant officer status to hold a commission in the USAR.

8.  Title 10, U.S. Code, section 1370 provides the legal authority for retirement in the highest grade satisfactorily held for commissioned officers.  It states, in pertinent part, that a commissioned officer who retires under any provision of law shall be retired in the highest grade in which they satisfactorily served on active duty, as determined by the Secretary of the military department concerned, for not less than six months.

9.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 12 sets policies and procedures for voluntary retirement of Soldiers because of length of service.  Paragraph 12-3b states, in pertinent part, that retirement will be in the regular or reserve grade the Soldier holds on the date of retirement as directed in Title 10, U.S. Code, section 3961.
10.  Paragraph 12-6 (Advancement on the Retired List) of this regulation contains guidance on the advancement of enlisted Soldiers on the Retired List.  It states that advancement on the Retired List is limited to retired Soldiers who held a higher grade and successfully served in that higher grade while on active duty.  There are no other provisions of law or regulation that provide for the advancement of an enlisted member who served, as a USAR commissioned officer, in a dual status.

11.  Title 10, U.S. Code, section 3964, provides that a retired enlisted member or warrant officer 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 satisfactorily served on active duty, (or, in the case if a member of the National Guard, in which he served on full-time duty satisfactorily), as determined by the Secretary of the Army.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was not retired at the highest Reserve rank he achieved (major).

2.  Evidence of record shows the applicant served on active duty for training as a second lieutenant in the CAARNG from 16 October 1979 to 11 February 1980, less than 6 months.

3.  The applicant never served on active duty as a commissioned officer in the rank of major.  Therefore, there is no basis for granting the applicant’s requested relief.

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)                                         AR20090016511



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ABCMR Record of Proceedings (cont)                                         AR20090016511



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