IN THE CASE OF:	  

		BOARD DATE:	    6 May 2010

		DOCKET NUMBER:  AR20090018669 


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 reconsideration of his earlier petition requesting reinstatement of his rank to lieutenant colonel (LTC).  

2.  The applicant states the whole point of his early retirement from active duty with only 2 1/2 years time in grade as an LTC seems to have been missed or perhaps he failed to properly articulate it.  He claims personal hardship compelled him to retire in November 1985.  At the time, he had 2 1/2 years of service as an LTC and elected to retire rather than accept an overseas long tour. He states after serving two consecutive tours in the Washington D.C. area, he was not allowed to extend his last assignment for 6 months.  He claims his retirement was for compassionate family reasons.  He had two children (ages 10 and 14) by his first marriage and he did not want to leave them behind and not see them for 3 years during their formative ages.  

3.  The applicant further states military service requires great sacrifice and he has been no stranger to it.  However, in the summer of 1985, he tried all avenues to either extend his assignment at the Army Materiel Command, obtain an acceptable stateside assignment, or an overseas short tour.  The posture of the Army at the time was too many officers were "homesteading" in the D.C. area and he was due for an overseas long tour.  


4.  The applicant further states he had a pregnant wife and a 3 year old child at home, and his older children from his previous marriage were living in Woodbridge, Virginia.  A 3 year tour in Germany would have made it very difficult or impossible to have seen his older children more than once or twice during this period.  As a caring father, this was not an acceptable alternative.  Consequently, to avoid undue personal hardship, he accepted retirement in the grade of major rather than accept the 3-year overseas assignment.  

5.  The applicant also states that, regarding his voluntary acceptance of the recall in the grade of major, he provided documentation showing the second recall was intended to be in the grade of LTC as shown in communications up to 1 week before the orders were cut.  Again, he could have rejected the orders and left the position unfilled, but chose to pursue the reinstatement while on active duty using a process available to him he had been told about on numerous occasions by Human Resources Command (HRC) officials.  He claims he chose what he felt was the more honorable course of action and accepted the recall orders.  However, the process outlined by HRC for reinstatement of his rank while on active duty was seriously flawed.  After 2 years of trying he has been unable to have his case reviewed by the Assistant Secretary of the Army, Manpower and Reserve Affairs (ASA-M&RA).  

6.  The applicant claims his petition is for fairness and the unjust situation created by failing to allow him to serve in the active duty rank he earned and in which he previously served.  He has now completed two combat tours in the Middle East and two deployments of 4 to 8 weeks with another 4 to 6 month tour on the horizon in January 2010.  He concludes by stating he believes it is only fair that the Army allow him to perform this service in the rank of LTC. 

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090007228, on 28 May 2009.  

2.  The applicant provides a self-authored letter as new evidence that requires reconsideration of his earlier request.  

3.  During the original review of this case it was determined the applicant voluntarily requested and was granted retirement in the rank of major prior to completing the 3 years of service as an LTC as required by law to retire in that grade.  It also found no evidence suggesting he was forced or otherwise made to retire prior to completing the 3 years time in grade service requirement necessary to retire as an LTC.  It also concluded the evidence showed no extreme hardship, exceptional, or unusual circumstances that would have justified placing him on the Retired List as an LTC, or that he requested such consideration. 

4.  The applicant was voluntarily recalled to active duty as a retiree in his retired rank of major in accordance with the governing regulation, and it was presumed this was the rank in which Department of the Army (DA) determined he should be utilized.  The applicant provided unsigned correspondence showing his immediate chain of command, on two separate occasions in two separate commands, requested reinstatement of his rank to LTC.  However, there is no evidence that either was approved.  

5.  The applicant now provides a self-authored letter with a new argument/evidence for reconsideration.  In the letter he argues that his retirement as a major was based on family hardship.  He also argues the reinstatement process that was explained to him by HRC officials was flawed and as a result, he is petitioning on the basis of fairness, due to an unjust situation.   He also argues it is only fair that his LTC rank be reinstated based on his combat deployments and the tours he has completed as a retiree recall.  

6.  The applicant's record shows he entered active duty on 3 February 1967.  He was promoted to LTC on 1 July 1983.  He voluntarily requested retirement, in the rank of major, on 31 October 1985.  He was released from active duty for the purpose of retirement on 31 October 1985, and was placed on the Retired List in the rank of major on 1 November 1985.  At the time of his retirement, he had completed 20 years and 5 days of active military service.

7.  The applicant's record contains a DA Form 160-R (Application for Active Duty) completed by the applicant on 18 July 2005, in which he volunteered for active duty.  It also contains a Deputy Assistant Secretary (Human Resources), ASA/M&RA memorandum, dated 22 September 2006, approving the applicant's voluntary recall to active duty in the rank of major. 

8.  The record also contains U.S. Army HRC, St. Louis, Missouri Orders
M-09-602424, dated 26 September 2006, ordering the applicant to active duty in a retired status in the rank of major for a period not to exceed 391 days, effective 26 November 2006.  

9.  On 21 January 2008, he was honorably released from active duty and returned to his retired status after completing 1 year, 1 month, and 26 days of active service.  

10.  The record contains a second DA Form 160-R submitted by the applicant on 20 March 2008, in which he again volunteered for active duty service.  It also contains a Chief, Operations and Plans Division, HRC-Alexandria, memorandum, dated 7 April 2008, requesting ASA/M&RA approval to recall the applicant to active duty in the rank of major.

11.  The record also contains HRC-St. Louis Orders A-06-810522, dated 6 June 2008, ordering the applicant to active duty from a retired status in the rank of major for a period of 730 days.  

12.  The applicant's record is void of any evidence that his request for reinstatement was processed through his major command and/or acted upon by Headquarters, Department of the Army (HQDA).  

13.  Title 10 of the U.S. Code, Section 1370 provides the rules for retirement in highest grade held satisfactorily.  It states in order to be eligible for voluntary retirement in a grade above major or lieutenant commander, a commissioned officer must have served on active duty in that grade for not less than 
3 years. 

14.  Army Regulation 600-8-24 (Officer Transfers and Discharges) provides the policy for officer transfers from active duty to the Reserve Component (RC) and discharge functions for all officers on active duty for 30 days or more.  Chapter 6 contains guidance on retirement.  It states a commissioned officer must serve on active duty for 3 years in grade to retire in a rank above major and below lieutenant general.  This requirement may be waived in individual cases involving extreme hardship or exceptional or unusual circumstances.  

15.  Army Regulation 601-10 (Management and Recall to Active Duty of Retired Soldiers of the Army in Support of Mobilization and Peacetime Operations) prescribes policy and responsibilities for:

	a.  Recalling retired Soldiers in time of a national emergency, mobilization, or war when declared by the President or Congress, in the interest of national defense, or as otherwise authorized by law; 

	b.  Recalling retired Soldiers to fill active Army requirements in support of peacetime operations;

	c.  Pre-assigning selected retired Soldiers; and 

	d.  Peacetime management of retired Soldiers in preparation for their use. 

16.  Paragraph 2-4 of the same regulation provides guidance on active duty grade and promotion.  It states retired Soldiers ordered to active duty (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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention his rank of LTC should be reinstated because family hardship was the basis for his AD retirement, because of his subsequent recall combat service, and because the reinstatement process explained to him by HRC officials was flawed has been carefully considered.  However, the evidence does not support this claim.  

2.  By law and regulation, retirees will be ordered to active duty in their grade on the retired list unless otherwise directed by DA.  A retired Soldier who previously served on AD satisfactorily, as determined by the Secretary of the Army, in a grade higher than their retired grade may be ordered to AD in the highest grade held satisfactorily.  In order for service in the grade of major and above to be considered satisfactory for retirement purposes the officer must have completed 3 years of active service in that grade.  The 3 year satisfactory service requirement may be waived for retirement in cases involving extreme hardship or exceptional or unusual circumstances.  Retired military personnel recalled to AD in retired status are not eligible for promotion.

3.  In this case, the applicant clearly did not complete 3 years of service as a LTC prior to his AD retirement.  Further, the evidence fails to support a conclusion the family considerations that resulted in him declining his overseas assignment and requesting retirement rose to the level of extreme hardship, or exceptional or unusual circumstances, at the time he requested retirement, or that he ever requested a waiver under this criteria.  As a result, it does not appear a waiver was appropriate at the time of his retirement, nor would it be appropriate now. 

4.  The evidence further shows the applicant was recalled to AD in his retired grade of major for both recalls.  Additionally, there is no evidence suggesting the DA ever approved his recall in a higher grade.  Finally, his record is void of evidence the requests he provided for reinstatement of his grade to LTC was processed or approved by proper authority.  

5.  In view of the facts of this case, there is no evidence to support that the applicant's voluntary recalls to AD in his retired grade of major were in error or unjust.  As a result, there is an insufficient evidentiary basis to support granting the requested relief or to amend the original ABCMR decision in this case. 

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 to amend the decision of the ABCMR set forth in Docket Number AR20090007228, dated 28 May 2009.  



      _________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)                                         AR20090018669



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ABCMR Record of Proceedings (cont)                                         AR20090018669



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