BOARD DATE:	  9 March 2010

		DOCKET NUMBER:  AR20090016773 


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 an exception to policy which would allow him to retire and be paid as a lieutenant colonel (LTC)/O-5.  

2.  The applicant states that he was in a "sanctuary status" at the time he was promoted and had a mandatory retirement date which did not allow him to complete the required three-year time in service at that rank/grade in order to retire as an LTC/O-5.  He adds that currently there is no provision that would allow him to extend in sanctuary status beyond 20 years.  He also adds that there are several LTC/O-5 positions offered under the Retiree Recall Assignment, starting December 2009 and that he is interested in such assignment.  However, working with his peers as a major (MAJ)/O-4 would give the appearance that he was demoted.  

3.  The applicant provides a copy of Orders 366-0050 (Retirement Orders), issued by Fort Eustis, VA, on 31 December 2008; a copy of Orders B-03-902049 (Promotion to LTC Orders), issued by the U.S. Army Human Resources Command (USAHRC), St, Louis, MO, on 20 March 2009; and a copy of a memorandum, dated 25 November 2008, authorizing him "Sanctuary Retirement." 

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was appointed as a combat engineer second lieutenant in the U.S. Army Reserve (USAR) and executed an oath of office on 29 December 1986.  He subsequently entered active duty on 4 January 1987, completed several training courses, served in various positions within and/or outside continental United States, and attained the rank/grade of captain (CPT)/O-3.  

2.  He was honorably discharged in the rank/grade of CPT/O-3 on 9 September 1999 by reason of disability with entitlement to severance pay.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he completed 12 years, 8 months, and 6 days of creditable active service. 

3.  The applicant's records do not indicate how he reentered military service; but, it appears that on an unknown date subsequent to his discharge, he was transferred to the USAR Control Group (Individual Ready Reserve (IRR)) and was assigned to the U.S. Army Personnel Command (now known as USAHRC), St. Louis, MO, with duty in Norfolk, VA.

4.  On 19 June 2002, the applicant was promoted to MAJ/O-4, and on 19 August 2002 he was ordered to active duty in support of Operation Noble Eagle and was assigned to Headquarters, U.S. Army Corps of Engineers, Washington, DC. He was honorably released from active duty on 1 June 2007 and he was transferred to the USAR Control Group (Individual Mobilization Augmentee or IMA).  The DD Form 214 he was issued shows he completed 4 years, 9 months, and 13 days of creditable active service.

5.  On 9 June 2008, the applicant was ordered to active duty to obtain 20 years of active Federal service under the Extended Active Duty (EAD) Sanctuary Program.  He was assigned to Fort Monroe, VA.

6.  On 5 November 2008, the applicant submitted a request for sanctuary retirement.

7.  On 25 November 2008, by memorandum, an official at USAHRC-St. Louis notified the applicant that his application for sanctuary retirement was approved for 30 November 2009.  Accordingly, on 31 December 2008, the Military Personnel Division, Fort Eustis, VA (which also services Fort Monroe, VA) published Orders 366-0050 announcing the applicant's retirement in the rank/grade of MAJ/O-4, effective 30 November 2009.

8.  On 20 March 2009, USAHRC-St. Louis, MO, published Orders B-03-902049 announcing the applicant's promotion to LTC/O-5 effective 4 March 2009.



9.  The applicant's records show he was honorably retired on 30 November 2009 and was placed on the retired list in his retired rank/grade of MAJ/O-4.  He was credited with 20 years and 1 day of creditable active service, of which 8 months and 26 days was served in the rank/grade of LTC/O-5.

10.  On 1 July 2009, the applicant submitted a request for a waiver to retire in the rank/grade of LTC/O-5.  However, on 20 August 2009, by memorandum, the Chief of Officer Division at the Office of the Deputy Chief of Staff, G-1, notified the applicant that his request was denied because he had not satisfied the three- year time in service requirement to retire at the higher grade.  He was also notified that the Secretary of the Army has the authority to reduce the time in grade requirement to 2 years; however, by law, any reduction below two years is reserved for extreme hardships and/or exceptional situations and can only be authorized by the President of the United States.

11.  Title 10, U.S. Code (USC), section 12686a, states that under regulations to be prescribed by the Secretary concerned, which shall be as uniform as practicable, a member of a Reserve Component who is on active duty (other than for training) and is within two years of becoming eligible for retired pay or retainer pay under a purely military retirement system (other than the retirement system under chapter 1223 of this title), may not be involuntarily released from that duty before he becomes eligible for that pay, unless the release is approved by the Secretary.

12.  Title 10, USC, section 1370 provides for the rule for retirement in highest grade held satisfactorily.  It states that unless entitled to a higher retired grade under some other provision of law, a commissioned officer (other than a commissioned warrant officer) of the Army, Navy, Air Force, or Marine Corps who retires under any provision of law other than chapter 61 or chapter 1223 of this title shall, except as provided in paragraph (2), be retired in the highest grade in which he served on active duty satisfactorily, as determined by the Secretary of the military department concerned, for not less than six months.  In order to be eligible for voluntary retirement under any provision of this title in a grade above major or lieutenant commander, a commissioned officer of the Army, Navy, Air Force, or Marine Corps must have served on active duty in that grade for not less than three years, except that the Secretary of Defense may authorize the Secretary of a military department to reduce such period to a period not less than two years.

13.  The USAHRC official website provides a fact sheet concerning the “sanctuary retirement."  Commonly referred to as "18 year lock in," "Sanctuary" is the term that is used for Reserve Component (RC) Soldiers who are mobilized and have achieved at least 18 years, but less than 20 years, of active Federal service (AFS).  RC Soldiers are required to apply for sanctuary and can be retained by law until they reach 20 years AFS when they become eligible for retirement pay.  If a Soldier gets promoted before entering the Sanctuary program, he/she may retire at the promoted rank if all time requirements can be met before retirement.  Existing promotion policies currently in effect for commissioned officers, warrant officers, and enlisted Soldiers remain in effect. 

14.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers other Than General Officers) prescribes policy and procedures used in the selection and promotion of commissioned officers of the Army National Guard of the United States and the commissioned and warrant officers of the U.S. Army Reserve.  It states, in pertinent part that an officer in the grade of LTC or colonel must serve in that grade for not less than 3 years from the date of promotion to voluntarily retirement in that grade unless waived under some other provision of law.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant fell into the "18-year lock in" and applied for extension on active duty under the Sanctuary program for the purpose of retirement.  His request was approved and he was ordered to active duty to obtain 20 years of AFS under the EAD Sanctuary Program.  He was then selected for promotion to LTC/O-5 on 4 March 2009.  However, he retired on 30 November 2009.

2.  The law allows the Secretary of the Army to reduce the time in grade requirement for voluntary active service retirement of an officer above the grade of MAJ/O-4 to a period of not less than 2 years.  The applicant in this case completed 8 months and 28 days of active service in the promoted grade upon his retirement on 30 November 2009.  Therefore, he did not fulfill the statuary requirements of the higher grade.  

3.  Individual cases involving extreme hardship or unusual circumstances may warrant a waiver of the 2-year requirement and can be granted by the President of the United States.  This authority cannot be delegated.  The applicant did not show extreme hardship or unusual circumstances that would warrant such action.


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)                                         AR20090016773



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ABCMR Record of Proceedings (cont)                                         AR20090016773



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