BOARD DATE: 11 January 2011
DOCKET NUMBER: AR20100013465
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 to be advanced to major on the Retired List based on his active service plus his service on the Retired List totaling 30 years.
2. The applicant states his commission and eligibility for retirement at the grade of captain/pay grade O3E were restored by an Army Board for Correction of Military Records (ABCMR) decision in 1996. As a result, a Stand-by Advisory Board (STAB) promoted him to major. He states he was verbally informed he could file an application to the ABCMR for advancement to major upon his completion of 30 years of active service and service on the Retired Life.
3. The applicant provides copies of:
* a message, dated 9 January 1987, from Headquarters, Department of the Army
* a legal opinion, dated 1 October 1993, from the Office of the Judge Advocate General
* an advisory opinion, dated 21 December 1995, from the Office of the Chief, Army Reserve
* a memorandum, dated 22 March 1996, from the U.S. Army Enlisted Records and Evaluation Center, Fort Benjamin Harrison, IN
* a DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty), dated 22 March 1996
* his DD Form 214 (Certificate of Release or Discharge From Active Duty) with a separation date of 30 June 1996
* his retirement orders, dated 20 March 1996, for his retirement date of
1 July 1996
* his notification of promotion letter to major, dated 2 December 1999, from the STAB, U.S. Total Army Personnel Command, St. Louis, MO (now known as Human Resources Command (HRC))
* his promotion letter, dated 1 April 1994
* two excerpts from Army Regulations
* ABCMR Docket Number AC96-05172, dated 7 February 1996
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. On 20 March 1981, the applicant was commissioned a second lieutenant in the U.S. Army Reserve (USAR) and ordered to active duty. He had previously served 4 years, 10 months, and 22 days of active service in an enlisted status. He was promoted to captain on 1 October 1984.
3. On 12 February 1993, the applicant was notified he had twice been non-selected for promotion to major and he had to be released from active duty not later than 1 August 1993.
4. As a result of ABCMR Docket AC96-05172, the applicant's records were corrected to show:
* he was released from active duty on 1 August 1993 as a captain/pay grade O3E. He had completed 12 years, 4 months, 12 days of commissioned service on active duty
* he was transferred to the USAR Control Group (Dual Component) effective 1 August 1993
* the reason for his separation was non-selection - permanent promotion
5. Based on the above corrections, the applicant became eligible for a Standby Board consideration for promotion to major in the USAR under 1994 criteria.
6. On 2 August 1993, the applicant enlisted in the Regular Army as a staff sergeant/pay grade E6.
7. As a result of the STAB, the applicant was promoted to major in the USAR with an effective date of 2 August 1993.
8. On 30 June 1996, the applicant was discharged from his enlisted status as a staff sergeant. He had completed a total of 20 years, 2 months, and 3 days of active service. Effective 1 July 1996, he was transferred to the USAR (Retired Reserve) and assigned to the USAR Control Group (Retired) in the grade of captain/pay grade O3E.
9. On 28 April 2006, the applicant's active service plus his service on the Retired List totaled 30 years.
10. Title 10 of the United States Code, section 3964, provides the legal authority for advancement on the Retired List. It states, in pertinent part, that retired Soldiers are entitled, when their active service plus service on the Retired List totals 30 years, to be advanced on the Retired List to the highest grade they held and in which they satisfactorily served while on active duty as determined by the Secretary of the service concerned.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends he should be advanced to major on the Retired List.
2. The statute provides that a Soldier may be advanced on the Retired List to the highest grade he satisfactorily held while on active duty. There is no evidence the applicant served on active duty in the rank of major. Therefore, he is not entitled to advancement to major on the Retired List.
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) AR20100013465
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20100013465
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