IN THE CASE OF:	  

		BOARD DATE:	  19 April 2011

		DOCKET NUMBER:  AR20100015738 


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 minimum instructor pay for duties as a Junior Reserve Officers’ Training Corps (JROTC) instructor be returned to the grade of colonel (COL).  

2.  He states his minimum instructor pay for JROTC duty was initially established and paid as COL then it was unjustly changed to LTC.  

3.  He provides:

* Self-authored statement, dated 13 May 2010
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 30 June 2006
* Orders promoting him to COL, dated 13 February 2006
* JROTC Instructor Pay Worksheet
* Army JROTC Instructor Monthly Statement
* Sworn statement from the former commander of Human Resources  Command (HRC) – St. Louis, MO, dated 25 March 2010
* Letter from the Office of the Deputy Chief of Staff, G-1, dated 
		20 November 2009

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a Reserve commissioned officer on 17 May 1981 in the rank of second lieutenant.  He was ordered to active duty in an Active Guard Reserve status on 13 September 1987.
2.  He was promoted to LTC on 1 February 2002.  

3.  Orders published on 13 February 2006 promoted him to COL with an effective date and date of rank of 1 February 2006.   

4.  In a 1 March 2006 letter, the Deputy Chief of Staff, Army JROTC, informed the principal of Walhalla High School that the applicant was granted approval for employment on a 12-month contract as an Army Instructor, on a cost shared basis starting 1 July 2006.  The letter shows the applicant’s rank of COL was lined through and was replaced with a handwritten entry of “LTC.”  The letter said a DD Form 2754 and DD Form 2767 were enclosed.

5.  Orders published on 17 March 2006 released him from active service, assignment and duty, effective 30 June 2006, and on the date following, placed him on the retired list.  These orders show his retired grade as LTC with a date of rank of 1 February 2002.  

6.  His DD Form 214 for the period ending 30 June 2006 shows his rank and pay grade at the time of separation as COL/O-6 with an effective date of pay grade of 1 February 2006.  Item 18 (Remarks) shows his retired list grade as LTC/O-5.

7.  His JROTC Instructor Pay Worksheet, dated 18 July 2006, shows he was paid in pay grade O-6 from 1 July 2006 to 30 September 2006.

8.  His DD Form 2767 (JROTC Instructor Annual Certification of Pay and Data Form), dated 8 May 2007, shows he was employed as a JROTC instructor at Walhalla High School from 1 July 2006 through 30 June 2007 and his retired grade was listed as “O5/LTC.”  

9.  The DD Form 2754 that was enclosed with the 1 March 2006 letter is not available.  However, like the DD Form 2767, it only contains a block for retired grade.

9.  His Army JROTC Instructor Monthly Statement, dated 1 February 2008, shows his pay grade as O-6.  

10.  His Army JROTC Instructor Monthly Statement, dated 1 March 2008, shows his pay grade as O-5.  

11.  In an email, dated 28 April 2008, the Chief of Instructor Management Division informed him that his minimum instructor pay was based on his retired pay and all of the allowances he was authorized were also based on his retired status listed at the Defense Finance and Accounting Service.  Therefore, his minimum instructor pay was computed at the LTC/O-5 pay scale.  

12.  On 20 November 2009, the Chief, Officer Division, Office of the Deputy Chief of Staff, G-1, responded to his letter (date unknown) regarding the grade he would be recalled in if he was ordered to active duty as a retiree.  The Chief, Officer Division explained that a retiree’s recall grade was governed by Army Regulation 601-10 (Management and Recall to Active Duty of Retired Soldiers of the Army in Support of Mobilization and Peacetime Operations), paragraph 2-4a, which was revised on 13 March 2009 [paragraph cited].  It was stated that the final determination of a retired officer’s recall grade was made by the Assistant Secretary of the Army for Manpower and Reserve Affairs.  Every determination was made on a case-by-case basis, taking into consideration the grade of the position to be filled, the request by the relevant command, the recommendations of the Commanding General, HRC, the Chief of Senior Leader Division, and the Director of Military Personnel Management.  He was advised that he would be recalled as no less than a LTC.  

13.  He provided a sworn statement, dated 25 March 2010, from the former commander of HRC-St. Louis, MO which supported his request to this Board.  The former commander stated that, in the interest of justice, the Army Cadet Command’s decision should be reversed and the applicant should continue to be paid as a COL.  The former commander also stated the applicant:  

* was the Chief of the Full-Time Support Management Directorate
* explained to him the reason why he decided to retire based on the job offer from the Army Cadet Command and that he was assured he would be paid as a COL
* is now being paid by the Army Cadet Command at the rank of LTC

14.  He provided a self-authored statement in support of his claim and stated:

	a.  During the hiring process, the Army Cadet Command, Instructor Management Division determined that his compensation would be at the grade of COL.  The supervisor of pay informed him that his pay would be based on his active duty grade of COL.  

	b.  He received compensation at the grade of COL for 18 months, from July 2006 to February 2008.  The Instructor Management Division changed his pay to LTC in February 2008.  He was told his minimum instructor pay should have been based on his retired grade of LTC.  

	c.  He retired from Army and accepted the JROTC instructor position with the understanding that his instructor pay would be based on his active duty grade of COL/O-6.  He states he wears his proper COL insignia and the Army Cadet Command has always assigned him to positions of responsibility based on the grade of COL.  

	d.  He was promoted to COL while on active duty and served satisfactorily as a COL prior to retiring.  He retired before serving three years on active duty as a COL because the Army Cadet Command informed him that he would be paid as a COL if he accepted their job offer.  

	e.  He cited excerpts from Army Regulation 145-2 (Organization, Administration, Operation, and Support), paragraph 4-19a for instructors pay and Army Regulation 601-10, paragraph 2-5a.  

	f.  He was told that the definition of “active duty grade” as it applied to his situation meant the grade at which the Army may order him to active duty if the Army did in fact or him to active duty (i.e., apparently as a mobilization asset; or as a retiree recall; etc.).  

15.  His Chronological Statement of Retirement Points, dated 8 November 2010, shows his grade was COL.  

16.  In the processing of this case, an advisory opinion was obtained from the Chief, Veterans Inquiry Branch, Army Personnel Records Division, HRC-Fort Knox, KY.  This office did not take administrative action as a result of a conversation with the Army Cadet Command (Conversation Record).  The opinion cited Army Regulation 601-10, paragraph 4-22(a)(1)(b) (sic) and stated that:

	a.  When the applicant retired he did not meet the time in grade requirements for his promotion to COL/O-6, which was three years in accordance with Army Regulation 600-8-29 (Officer Promotions), chapter 1, paragraph 1-18(1)(b).  

	b.  Therefore, since he retired at the rank and grade of LTC/O-5, he was not entitled to the grade and rank of COL/O-6 with the U.S. Army Cadet Command, Instructor Management Division.  

17.  He was provided a copy of the advisory opinion to allow him to provide comments or a rebuttal.  On 16 March 2011, he provided a rebuttal to the advisory opinion and alleged:  

	a.  The opinion failed to address the fact that he accepted the JROTC based on representations that he would be paid as a COL.  

	b.  The regulatory cites quoted in the advisory opinion were not relevant to the issue of JROTC instructor pay.  

	c.  He knew that he did not meet the 3-year time in grade requirement to be placed on the retired list as a COL at the time he accepted the JROTC position, but he accepted the position with the understanding that he would be placed on the retired list in grade LTC and paid as a COL.  

	d.  He cited excerpts from Army Regulation 145-2, paragraph 4-19a.

	e.  In accordance with his agreement with the Army, he was paid as a COL and after 18 months, it was changed from COL to LTC.

	f.  He cited a quote from a conversation record and he contends this information was incorrect.  The school district relies on the direction of the Army Cadet Command for instructor pay.  

18.  He provided a Conversation Record, dated 31 January 2011, which stated:

   a.  Although the applicant had been assigned to a COL’s position with the JROTC, the Army Cadet Command in February 2006 authorized the applicant to receive the pay of LTC.
   
   b.  The District School System authorized the applicant to receive the pay of COL and not the U.S. Army Cadet Command Instructor Management Division.  The applicant’s position was calculated at the rank of LTC/O-5 by the Army Cadet Command.
   
   c.  A review of the applicant’s record in February 2008 revealed that he was erroneously being paid as a COL/O-6 and should have been paid as a LTC/O-5 at the onset of his contract.  

19.  In a 14 March 2011 memorandum, a staff member stated she was responsible for the management of teacher pay at the School District of Oconee County (SDOC).  The instructor pay for the applicant and all JROTC teachers in SDOC is established by the Army at Cadet Command.  The applicant was paid based on compensation furnished by the Army at his time of initial hire and later reduced his pay based on a change directed by the Army.  


20.  References:

   a.  Army Regulation 145-2, chapter 4 prescribes the policies that the Army will follow in determining the qualifications of instructors and in providing information to the school and to the instructors.  The Army expects school authorities to use their own hiring procedures to employ instructors.
   
   	(1)  Paragraph 4-3 states military retirees employed as JROTC instructors are members of the Armed Forces not on active duty.  Title 10, United States Code, Section 2031 provides identical authority to the school and the Secretary of the Army, with delegated authority to the Commanding General (CG), 
U.S. Army Cadet Command (USACC), to approve the qualifications of administrators and instructors in the program.  This dual approval is required for initial and continued employment.  The same essential qualifications will be used in approving retired instructors. 

   (2)  Paragraph 4-19a states pay is authorized for retired instructors 
employed by the school, whose qualifications are approved by the CG, USACC, in the amount that, when added to their retired pay will equal the amount of their active duty pay and allowances exclusive of hazardous duty pay.  Department of Defense Instruction 1205.13 and Enclosure 1 to 32 Code of Federal Regulations (CFR) Part 111.7 show examples of how the JROTC instructor's compensation pay is calculated.  

   (3)  Paragraph 4-19c states the Army will determine the minimum
instructor pay for each hired instructor, however, schools may pay instructors more than the amount in paragraph a above and will, as a minimum, offer instructors the same benefits package received by teachers in a comparable status.  The amount paid to the school by the Army is limited to that prescribed in paragraph “d” below.  USACC will furnish those figures to the schools upon request. USACC obtains information pertaining to retired pay from the Defense Finance and Accounting Service Center, Cleveland Center, Cleveland, OH 44199-1126. 

   (4)  Paragraph 4-19d states for each retired instructor reimbursable by the 
Secretary of the Army, and employed by the school 12 months each year, Department of the Army will pay to the school an amount equal to one-half the difference between the instructor's retired pay and the amount of pay and allowances (excluding hazardous duty pay) the instructor would receive if ordered to active duty.  For periods of service as a JROTC instructor of less than 12 months, the instructor will be compensated the difference between the 


amount of the retired pay and active duty pay for the length of employment as a JROTC instructor.  This should be expressed as a fraction of 12 months.  In districts that compensate instructors for less than 12 months or any period greater than the contract, the instructor's salary will be cost-shared based on the number of contract months rather than the pay periods.  All of the retired pay must be considered even though the member may have waived all or a portion of it to receive Department of Veteran's Affairs disability compensation. 

   b.  Army Regulation 600-8-29, paragraph 1-18 states that unless an officer declines a promotion in writing under the provisions of chapter 5, he or she is considered to have accepted the promotion on the effective date announced in the promotion order.  However, to retire or separate in the next higher grade, the officer must serve satisfactorily in the new grade of COL and LTC for 3 years. 

   c.  Army Regulation 601-10, paragraph 2-4a states retired Soldiers ordered to active duty will be ordered to active duty in their current grade on the retired list unless otherwise directed by Headquarters, Department of the Army.  A retired Soldier who previously served on active duty satisfactorily, as determined by the Secretary of the Army, in a grade higher than that Soldier's retired grade, may be ordered to active duty in the highest grade held satisfactorily.  A member of the Retired Reserve ordered to active duty under the provisions of Title 10 USC 12301(a) or 12301(d) must be ordered to active duty Service in their reserve grade under the provisions of Title 10 USC 12771.  A retired member ordered to active duty in a grade that is higher than the member's retired grade shall be treated as if the member was promoted to that higher grade while on that tour of active duty. 

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not indicate that the Army’s portion of the applicant’s minimum instructor pay for JROTC duty was unjustly changed from COL to LTC.  

2.  Orders published on 13 February 2006 promoted the applicant to the rank of COL with an effective date and date of rank of 1 February 2006.  

3.  Upon completion of sufficient service, he voluntarily retired from active service on 30 June 2006.  Orders show he was placed on the retired list in the rank of LTC on 1 July 2006.  


4.  Although the applicant states he accepted the JROTC position based on representations that he would be paid as a COL, the 1 March 2006 letter informing him he was approved for employment as an Army Instructor indicated his rank as LTC (a line-out from COL), an entry that should have triggered an inquiry into.  This was especially true since the DD Form 2767 and presumably the DD Form 2754 that were provided with that letter only mentioned his retired grade of LTC, not the grade of COL.  

5.  Although his JROTC Instructor Pay Worksheet and Monthly Statement show he was paid as a COL/O-6 from July to September 2006 and February 2008, it appears the Defense Finance and Accounting Service reviewed his military pay records and determined he was erroneously being paid as a COL/O-6 and should have been paid as a LTC/O-5.  As a result, the Army’s portion of his minimum instructor pay was changed from COL/O-6 to LTC/O-5 as indicated on his JROTC Instructor Monthly Statement for the month of March 2008.  

6.  His service record is void of evidence and he has not provided sufficient evidence to show the Army’s portion of his minimum instructor pay as a JROTC instructor should be based upon the rank of COL.  

7.  The fact that the Army reduced its portion of his salary does not preclude his employer from increasing their portion of his salary in order to honor his employment agreement with the school.  

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)                                         AR20100015738





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ABCMR Record of Proceedings (cont)                                         AR20100015738



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