IN THE CASE OF:	  

		BOARD DATE:	  26 May 2011

		DOCKET NUMBER:  AR20100026307 


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 on the Retired List to the rank/grade of major (MAJ)/O-4.

2.  The applicant states he satisfactorily held the rank/grade of MAJ/O-4 while on active duty.  However, he did not complete the required 6 months of time in service in that grade, he only held it for 3 months.  He was promoted to MAJ on 1 July 2002 and he retired on 30 September 2002.  He completed 30 years of active service and service on the Retired List as of 6 December 2010.

3.  The applicant provides:

* DD Forms 214 (Certificate of Release or Discharge from Active Duty) for the periods ending 23 July 1980, 14 March 1991, 16 April 1992, and 30 September 2002
* retirement orders
* Officer Record Brief
* promotion orders to MAJ

CONSIDERATION OF EVIDENCE:

1.  Having prior active enlisted and warrant officer service, the applicant's records show he was appointed as an Army Medical Services Corps second lieutenant of the U.S. Army Reserve and executed an oath of office on 15 March 1992.

2.  He entered active duty on 17 April 1992.  He served in various staff and leadership positions and he was promoted to captain (CPT) on 1 June 1996.  He was assigned to Fort Riley, KS.

3.  On 5 March 1992, he submitted a request for voluntary retirement to be effective on 1 October 1992.  He indicated he read and understood the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), table 6-1 and table 6-2, pertaining to the determination of his retired grade.  Considering those provisions and after a review of his records, he indicated he believed he was entitled to retire in the grade of CPT.

4.  On 25 April 2002, Headquarters, 24th Infantry Division, Fort Riley, KS, published Orders 115-009 reassigning him to the Transition Center effective 30 September 2002.  These orders further show his retirement date as 30 September 2002 and placement on the Retired List effective 1 October 2002. 
His retirement grade and effective date are shown as "CPT" and "1 June 1996" respectively.

5.  In July 2002, the U.S. Total Army Personnel Command published the officer by-name promotions for July 2002.  The applicant's name is listed as having been promoted to MAJ with an effective date and date of rank of 1 July 2002 by authority of Orders 158-035.

6.  He was honorably retired on 30 September 2002 and he was placed on the Retired List in his retired rank/grade of CPT/O-3 effective 1 October 2002.  His DD Form 214 shows he was credited with 21 years, 10 months, and 18 days of creditable active service.

7.  On 9 October 2010, he petitioned the Army Grade Determination Review Board (AGDRB) for advancement on the Retired List.  However, the AGDRB returned his case without action on 24 February 2011.  The AGDRB noted that the applicant did not hold the grade of O-4 the requisite 6 months before retiring as required by Title 10, U.S. Code, section 1370.  Since that requirement is statutory, even if the AGDRB could review his case it could not advance him on the Retired List to the grade of O-4.

8.  Army Regulation 635-5 (Separations Documents) prescribes the preparation guidelines for the DD Form 214.  It states that item 4 (Grade, Rate, or Rank) will reflect the active duty grade or rank and pay grade at the time of separation.

9.  Title 10, U. S. Code, chapter 369 governs retired grades.  Section 3961 of that title states that the retired grade of a regular commissioned officer who retires other than for physical disability and the retired grade of a reserve commissioned officer of the Army who retires other than for physical disability or for non-regular service under chapter 1223 of this title, is determined under section 1370 of this title.  

10.  Title 10, U.S. Code, section 1370, provides that unless entitled to a higher retired grade under some other provision of law, a commissioned officer (other than a commissioned warrant officer) of the Army, Navy, Air Force, or Marine Corps who retires under any provision of law other than chapter 61 or chapter 1223 of this title shall (with exceptions) be retired in the highest grade in which he served on active duty satisfactorily as determined by the Secretary of the Military Department concerned for not less than 6 months.

11.  Title 10, U.S. Code, section 3964, provides that warrant officers and enlisted members may, when their active service plus their service on the retired list totals 30 years, be advanced on the retired list to the highest grade in which they served on active duty satisfactorily.  There is no provision for advancing a commissioned officer who retired for other than physical disability on the retired list after the completion of a specific period of service.

DISCUSSION AND CONCLUSIONS:

The evidence of record shows the applicant was promoted to MAJ on 1 July 2002 and held that grade for 3 months through the date he retired on 30 September 2002.  In order to be advanced on the Retired List to the highest grade he satisfactorily held on active duty, he would have had to have held that grade for not less than 6 months.  He did not.  But even if he did, there is no provision in the law to advance commissioned officers on the retired list.  Therefore, he does not qualify for advancement 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 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)                                         AR20100026307



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ABCMR Record of Proceedings (cont)                                         AR20100026307



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