IN THE CASE OF:	 

		BOARD DATE:	 01 April 2010  

		DOCKET NUMBER:  AR20090017334 


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 he be advanced on the Retired List to the rank/grade of captain (CPT/O3-E) due to having enlisted service.

2.  The applicant states he believes he should have been placed on the Retired List as an O3E.  He was promoted to CPT in 1985 during his active duty service. He held and served honorably in that rank until he resigned his commission in 1992.  He was then appointed as a warrant officer in the Army National Guard (ARNG) and was promoted to chief warrant officer 3 (CW3).  He retired on        30 April 2009 as a CW3.  However, he previously held the rank of CPT/O3-E while on active duty.  He completed 20 years of active service, plus the time spent on the retired list equals over 30 years of military service; therefore, he should be retired as an O3-E.  He brought this issue up with the Retirement Services Office prior to retirement and officials agreed that he met the requirements for a grade change but they were unable to correct his grade.  He understands that a grade determination can be conducted by the Army even after retirement if a mistake occurred or a miscalculation led to an improper separation or grade determination.  He therefore requests to be advanced on the retired list to the highest grade he satisfactorily held while on active duty, under the provisions of Title 10, U.S. Code (USC), section 3964.

3.  The applicant provides a self-authored statement, dated 20 August 2009, in support of his request. 



CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he initially enlisted in the Regular Army (RA) on 10 June 1975 and held military occupational specialty (MOS) 11B (Infantryman). He was honorably discharged in the rank/grade of sergeant/E-5 on 17 September 1981 for the purpose of accepting a commission in the Army.

2.  His records also show he was appointed as an infantry second lieutenant in the U.S. Army Reserve with concurrent call to active duty on 18 September 1981. He served in various staff and command positions and was promoted to first lieutenant on 18 March 1983 and CPT on 1 May 1985.  

3.  He was honorably released from active duty in the rank/grade of CPT/O-3 on 10 August 1992 under the Fiscal Year 1992 Voluntary Incentive Program with entitlement to a special separation bonus.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed a total of 10 years, 10 months, and 23 days of creditable active service during this period and he had 5 years, 8 months, and 14 days of prior enlisted service.

4.  On 20 June 1994, he was appointed as a chief warrant officer 2 (CW2) in the Kansas Army National Guard (KSARNG) and held MOS 153B (Helicopter Pilot).  He was promoted to CW3 on 6 March 2003.

5.  On 30 April 2004, he was honorably discharged from the ARNG and transferred to the USAR Control Group (Retired Reserve) in the rank of CW3.  His NGB Form 22 (Report of Separation and Record of Service) shows he completed 28 years of total service for retired pay.

6.  On 12 February 2006, he was appointed as a Reserve Warrant Officer of the Army and again appointed as a CW3 in the KSARNG and he was extended Federal Recognition for this appointment.

7.  On 14 June 2006, he was again honorably discharged from the ARNG and he was transferred to the USAR Control Group (Reinforcement).  

8.  On 23 August 2006, he was released from the USAR Control Group (Reinforcement) and appointed in the California Army National Guard (CAARNG).

9.  On or around 20 September 2006, he was ordered to active duty in support of Operation Iraqi Freedom and subsequently served in Iraq from 27 November 2006 to 5 November 2007.  He was honorably released from active duty to the control of his ARNG unit on an unknown date.
10.  On 25 November 2007, he was discharged from the CAARNG and he was transferred to the USAR Control Group (Reinforcement).  His NGB 22 shows he completed 29 years, 6 months, and 25 days of total service for retired pay.

11.  On 26 November 2007, he was again ordered to active duty and on 6 May 2008, he was authorized sanctuary retirement effective 30 April 2009.

12.  He was honorably retired on 30 April 2009 and placed on the retired list in his retired grade of CW3 on 1 May 2009.  His DD Form 214 shows he completed 20 years and 1 month of active service and 18 years, 7 months, and 25 days of inactive service.

13.  On 30 April 2009, he petitioned the Army Grade Determination Review Board (AGDRB) for advancement on the retired list.  However, the AGDRB returned his case without action on 16 September 2009.  He was advised this board did not have jurisdiction in his case.  

14.  Title 10, U.S.C, section 3914 provides the legal authority for an enlisted member of the Army who has at least 20, but less than 30 years of service, to retire upon their request.  Section 3961 of Title 10 provides the general rule for the proper assignment of a retired grade.  It states, in pertinent part, that a Reserve of the Army who retires other than for physical disability retires in the grade they hold on the date of retirement. 

15.  Title 10, U.S.C, section 3964 contains the legal authority for the advancement of enlisted members and warrant officers on the Retired List.  It provides that an enlisted member or a warrant officer who is retired with less than 30 years of active service is entitled, when their active service plus their service on the Retired List totals 30 years, to be advanced on the Retired List to the highest grade in which they served on active duty satisfactorily as determined by the Secretary of the Army. 

16.  Army Regulation 635-5 (Separations Documents) prescribes the preparation guidelines for DD Form 214.  It states in pertinent part that Item 4 (Grade, Rate, or Rank) will reflect the active duty grade or rank and pay grade at time of separation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be advanced to CPT/O-3E on the retired list. 

2.  The evidence of record shows he previously served on active duty as an enlisted member as well as a commissioned officer.  He satisfactorily held the rank of CPT for several years and was honorably released from active duty in the rank of CPT in August 1992.  He was subsequently appointed in the ARNG or USAR as a CW2 and was later promoted to CW3.  He was ultimately transferred to the Retired Reserve on 30 April 2004.  He had completed 28 years of total service for retired pay at the time.

3.  He returned to the ARNG and/or USAR in May 2006 and completed a period of active duty with service in Iraq.  He was subsequently granted a sanctuary retirement and ultimately retired in the rank of CW3 by reason of having completed sufficient service for a regular retirement (20 years and 1 month of active service).  He was placed on the Retired List at that time as a CW3 because that was the rank he held at the time of retirement.

4.  By law and regulation, in order to be placed on the Retired List at the highest grade held a Soldier must have 30 years of active service at the time of retirement.  The law allows for members to be advanced on the Retired List to the highest grade they held and in which they satisfactorily served on active duty when their active duty service and time on the Retired List equals 30 years.  

5.  He retired on 30 April 2009.  He completed 20 years and 1 month of active duty service and by the time his case is boarded, he would have completed only 1 year on the retired list.  Therefore, he has not met the legal requirement for advancement on the retired list and as such his request cannot be granted at this time.  As he gets close to the 30-year point, he should apply again to the AGDRB.

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)                                         AR20090017334



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ABCMR Record of Proceedings (cont)                                         AR20090017334



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