IN THE CASE OF:	  

		BOARD DATE:	  9 November 2010

		DOCKET NUMBER:  AR20100012498 


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 his pay grade be changed from lieutenant colonel/O-5 to colonel/O-6 on the Retired List so he can receive retirement pay at the O-6 level.

2.  The applicant states he was selected by the 1999 Colonel Promotion Board and was promoted in March 2000.  He states all the documents he received after that date were addressed to him as colonel.

3.  The applicant states that while on active duty for special work in Panama in September 1996, a test identified blood in his stool sample.  In November 1996 he was still having the same symptoms and it was recommended that he see his civilian doctor while on leave for Christmas.

4.  The applicant states that in December 1996 his family doctor referred him to another doctor who scheduled him for a colonoscopy and endoscopy on 30 December 1996.  The doctor placed him on large doses of two antibiotics and made a follow-up appointment.  During the follow-up appointment the doctor recommended that the applicant:

* leave the Central and South American areas because the tropical climate and environment are good for growing bacteria
* make an appointment with a gastroenterologist

5.  The doctor told him he would be taking Pentasa for the rest of his life and diagnosed him with ulcerative colitis due to an infection of the colon.  The bleeding had stopped; however, the doctor warned him that ulcerative colitis can flare up and that Latin America is not conducive to people who have ulcerative colitis.  He told the doctor his tour in Latin America was up in March 1997.

6.  The applicant states he left the Alabama Army National Guard (ALARNG) in July 1999 due to a recent change in his civilian employment.  In September 1999 he received notice that Colonel C____ was his personnel management officer (PMO) in St. Louis, MO.  He contacted his PMO after receiving information that he had made the promotion list for colonel.  The PMO indicated she would handle everything and for him not to worry.

7.  The applicant states he had several flare-ups due to ulcerative colitis from 1999 until March of 2003.  He suffered his first flare-up from ulcerative colitis in October 1999.  In November 1999 he had to give up his job due to his condition and on 7 October 2001 the Social Security Administration found him to be disabled effective 21 July 2000.

8.  The applicant states he does not remember receiving the 1 October 2001 [sic] reassignment orders releasing him from the U.S. Army Reserve (USAR) to the Retired Reserve.  He states the first time he saw these orders was 10 March 2010.

9.  The applicant states on 24 January 2003 he had an ileostomy operation.

10.  The applicant provides a 3-page statement with 15 enclosures.

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 applicant was appointed as a second lieutenant in the ALARNG on 2 February 1997.  He had previously served in the Regular Army in a commissioned status for 4 years, 3 months, and 3 days.

3.  On 25 May 1999, the applicant was separated from the ALARNG and transferred to the USAR Control Group (Individual Ready Reserve (IRR)).  He had completed 27 years and 1 day of qualifying service for nonregular service retirement pay.

4.  The applicant was promoted to colonel in the USAR effective 31 May 2000.

5.  On 9 October 2001, the applicant was transferred from the USAR Control Group (Reinforcement) to the Retired Reserve by reason of non-participation.  His USAR Personnel Command Form 249-E (Chronological Statement of Retirement Points) shows he attained only 15 membership points for his retirement years ending (RYE) 1 June 2000 and 1 June 2001.

6.  U.S. Army Human Resources Command Orders P09-910088, dated 15 September 2009, placed the applicant on the Retired List in the grade of colonel effective 15 February 2010.

7.  Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) states an officer (other than a commissioned WO) or enlisted Soldier who has accrued 20 years of qualifying service for retired pay is required to attain 50 points annually to be retained in an active status in the Selected Reserve, IRR, or Standby Reserve (Active List).  An officer or enlisted Soldier who fails to attain 50 points by the anniversary of his or her retirement year ending date will be removed from active status.  Soldiers removed from active status will be discharged or transferred to the Retired Reserve.  Transfer to the Retired Reserve is authorized when requested by Soldiers who are eligible.

8.  Title 10, U.S. Code, section 1406, states a person who is entitled to non-regular service retirement pay is entitled to retired pay at the rate of the highest grade held satisfactorily by the person at any time in the Armed Forces.  The highest grade in which a person served satisfactorily as an officer shall be determined in accordance with section 1370(d) of this title.

9.  Title 10, U.S. Code, section 1370(d), states:

	a.  In order to be credited with satisfactory service in an officer grade above major, a person must have served satisfactorily in that grade (as determined by the Secretary of the Military Department concerned) as a Reserve commissioned officer in an active status or in a retired status on active duty for not less than 3 years.

	b.  A person who has completed at least 6 months of satisfactory service in grade may be credited with satisfactory service in the grade in which serving at the time of transfer or discharge, notwithstanding failure of the person to complete 3 years of service in that grade, if that person is transferred from an active status or discharged as a Reserve commissioned officer because the person no longer meets the qualifications for membership in the Ready Reserve solely because of a physical disability, as determined, at a minimum, by a medical evaluation board and at the time of such transfer or discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his retired grade should be colonel/O-6 instead of lieutenant colonel/O-5.  He contends he didn't see his orders for transfer to the Retired Reserve until March 2010.

2.  The applicant failed to attain 50 points during his RYE's 1 June 2000 and 1 June 2001.  He was required by regulation to be removed from an active status by discharge or transfer to the Retired Reserve, if requested.  Therefore, he had to have requested transfer to the Retired Reserve or he would have been discharged.  

3.  The applicant provided an extensive history of his ulcerative colitis and ultimate surgery.  However, there is no substantive evidence that he was unable to perform the duties of his rank based on his medical condition.  There is no substantive evidence that he was referred to a medical evaluation board at the time of his transfer to the Retired Reserve.  His major surgery was performed 2 years after his transfer to the Retired Reserve.

4.  Title 10, U.S. Code, section 1370(d), states that in order to be retired in a grade above major, a person must serve in that grade in an active status for 3 years.  An exception is provided for a person who no longer meets the qualifications for membership in the Ready Reserve solely because of a physical disability.

5.  The applicant did not serve in the grade of colonel for 3 years in an active status.  He was not transferred to the Retired Reserve because of a physical disability.  Therefore, he should have been assigned to the Retired Reserve and placed on the Retired List in the grade of lieutenant colonel/O-5.

6.  In view of the above, the applicant is only entitled to nonregular retired pay at the level of lieutenant colonel/O-5.

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)                                         AR20100012498



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ABCMR Record of Proceedings (cont)                                         AR20100012498



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