IN THE CASE OF:	  

		BOARD DATE:	  20 July 2010

		DOCKET NUMBER:  AR20090017880 


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, his records be corrected to show he was recalled to active duty (AD) in the grade of lieutenant colonel (LTC/O-5) vice major (MAJ/O-4).  

2.  The applicant states, in effect, that he was selected for promotion to LTC prior to his retirement from AD and his last Officer Evaluation Report states "Promote him if he is recalled to AD."  He also states, in effect, when he was recalled to AD it was as a MAJ but once he was activated his grade and rank would be adjusted to LTC based upon his qualifications and the fact that he previously served in LTC/O-5 positions.  

3.  The applicant provides the following documents in support of his application:

* memorandum from the US Army Military Personnel Center ( now Human Resources Command [HRC]) dated 11 October 1984 
* DD Form 214 (Certificate of Release or Discharge from Active Duty) 
* DA Form 67-8 (Officer Evaluation Report)
* Orders Number A-12-826748, dated 24 December 2008 

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he was commissioned and entered active duty on 20 October 1964.

2.  The applicant submitted a copy of a memorandum from the US Army Military Personnel Center dated 11 October 1984 congratulating him for selection for promotion to LTC.

3.  The applicant submitted a copy of his DA Form 67-8 for the period 29 January 1984 to 28 January 1985 which shows in Part Ve (Comments on potential) "In the event of a recall to active duty, he should be recalled in the grade of LTC."

4.  The applicant's DD Form 214 contains the following entries:

* 4a (grade, rate, or rank) MAJ
* 4b (pay grade) O-4
* 12b (separation date this period) 28 February 1985

5.  Orders Number A-12-826748, HRC-St. Louis, dated 24 December 2008, show the applicant was recalled from retired status in the grade of MAJ/O-4 effective 15 February 2009.

6.  In the processing of this case, on 3 February 2010, an advisory opinion was provided by the Chief Special Actions Branch, DA Promotions.  The advisory official noted the applicant was requesting that his AD recall orders be corrected to reflect "selected for promotion to LTC and/or a review of whether a higher grade is warranted."  The advisory concludes by stating "by law the Army has no authority to promote the applicant once he retires."  Title 10, U.S. Code, Section 12307 (10 USC 12307) states a member of the Retired Reserves, recalled to AD, is not eligible for promotion or consideration for promotion.

7.  The applicant was provided a copy of the advisory opinion for comment.  In response to the advisory opinion, he submitted the following documents:

* a copy of his DA Form 71(Oath of Office- Military Personnel), showing he was commissioned in the RA on 11 August 1978
* Memorandum from Headquarters, Task Force Marne, showing his duty position and grade of position
* Memorandum of record subject:  Applicant's Duty Performance

8.  The applicant states, in effect, in his rebuttal that paragraph one of his orders states he was recalled to AD from retiree status meaning he is no longer Retired or in the Retired Reserve but is serving on AD in the active Army not as a Reserve (Reservist) and that his RA oath states "having been appointed an Officer in the RA he will well and faithfully discharge those duties."  

9.  Army Regulation 601-10 (Management and Mobilization of Retired Soldiers of the Army) provides policy and procedures for the management and mobilization of retired Soldiers of the Army.  Paragraph 2-5 states in pertinent part that Retired Soldiers ordered to AD will be ordered to AD in their current grade on the retired list unless otherwise directed by HQDA.  A retired Soldier who previously served on AD satisfactorily, as determined by the Secretary of the Army, in a grade higher than that Soldier's retired grade, may be ordered to AD in the highest grade held satisfactorily.  Retired military personnel recalled to AD in retired status are not eligible for promotion. 

10.  10 USC 12307 states in pertinent part that a member of the Retired Reserve who is ordered to active duty or other appropriate duty in a retired status may be credited under chapter 1223 of this title with service performed pursuant to such order.  A member in a retired status is not eligible for promotion (or for consideration for promotion) as a Reserve. 

DISCUSSION AND CONCLUSIONS:

1.  The  evidence of record confirms that in 1985, the applicant was transferred to the Retired Reserve in the grade of MAJ/O-4.  It also shows he was recalled from Retired Status to AD in the rank of MAJ in February 2009.  A retired Soldier recalled to AD will normally be ordered to AD in their current grade on the retired list.  In the applicant's case, that grade was MAJ.  

2.  Although the evidence shows the applicant was selected for promotion to LTC/O-5 prior to his retirement, it is likely he already had an approved retirement since he retired 4 months after he was selected for promotion.  There is no evidence to show he was promoted to LTC before he retired.  As a result, there is an insufficient evidentiary basis to support correcting his record to show he was recalled to AD as an LTC/O-5.  

3.  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.

4.  There is no evidence the announced policy or implementing guidance for the program under which he was accepted for Army service was amended or modified to allow for the promotion of officers who were recalled to AD from their retired status.



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)                                         AR20090017880



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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