IN THE CASE OF:
BOARD DATE: 9 November 2010
DOCKET NUMBER: AR20100011368
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, to receive retired pay for the rank and pay grade of lieutenant colonel (LTC)/O-5.
2. The applicant states he was promoted to LTC on 9 July 2009 and he is not receiving retired pay for this rank.
3. The applicant provides copies of his promotion orders, promotion certificate, and congratulatory letter from The Adjutant General, Pennsylvania Army National Guard (PAARNG).
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 record shows the applicant was transferred to the Retired Reserve on 24 May 1991 and placed on the Retired List on 25 May 1991 in the grade of major (MAJ)/O-4.
3. PAARNG Orders 190-999, dated 9 July 2009, promoted him to LTC and placed him on the Retired List of the Pennsylvania National Guard effective the same day.
4. The authority for this promotion was section 2313 of the military code which states every former officer, warrant officer, or enlisted person shall, upon application to The Adjutant General after his or her retirement, be promoted to the next higher grade on the Pennsylvania National Guard Retired List above that presently held in a grade Federally-recognized if the applicant:
a. has served a total of 25 years in the Armed Forces of the United States or its components, 10 years of which includes service in the PAARNG with active Federal service counting as double time. The 25 years of service shall be such as would be credited for retirement of National Guard and Reserve personnel; or
b. has served in the PAARNG, Pennsylvania Guard, or both for a period of 25 or more years and who has served in his highest grade for at least 1 year.
5. In connection with the processing of this case, an advisory opinion was received from the National Guard Bureau. It stated that Pennsylvania Military Regulation 600-4 prescribes the procedures to promote officers, warrant officers and enlisted Soldiers who retire from the PAARNG on the PAARNG Retired List. This is an honorary promotion and is a means of honoring individuals on the occasion of their retirement from active status.
6. On 27 October 2010, the advisory opinion was forwarded to him for acknowledgement/rebuttal. No response was received.
7. National Guard Regulation 600-100 (Commissioned Officers - Federal Recognition and related Personnel Actions) prescribes that the promotion of officers in the Army National Guard is a function of the State. As in original appointments, a commissioned officer promoted by State authorities has a State status in the higher grade under which to function. However, to be extended Federal recognition in the higher grade, the officer must have satisfied the requirements herein. Further, paragraph 2-8, states persons on the Retired List of the U.S. Army are ineligible for Federal recognition and waivers are not authorized.
DISCUSSION AND CONCLUSIONS:
1. The applicant requests to receive retired pay for the rank and pay grade of LTC/O-5.
2. The record shows he was placed on the Retired List on 25 May 1991 as a MAJ/O-4. On 9 July 2009 the PAARNG issued orders promoting him to LTC for the purpose of honoring his service. This promotion did not receive Federal recognition because regulatory guidance prohibits members on the Retired List from being Federally recognized. Therefore, he is not entitled to receive pay for this honorary promotion.
3. In view of the foregoing, his request should be denied.
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) AR20100011368
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ABCMR Record of Proceedings (cont) AR20100011368
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