IN THE CASE OF:
BOARD DATE: 23 August 2011
DOCKET NUMBER: AR20100026581
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 advancement on the Retired List to his highest grade held of colonel (COL)/O-6.
2. He states he was a prior-enlisted Soldier who has now completed 30 years of service. He would like his retirement and pay grade raised to COL/O-6 as allowed by regulation.
3. He provides:
* letter from the Army Review Boards Agency
* self-authored statement
* two DD Forms 214 (Report of Separation from Active Duty) and (Certificate of Release or Discharge from Active Duty)
* memorandum requesting frocking authority
* promotion orders to COL
* Certificate of Retirement
* retirement orders
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. The applicant completed prior-enlisted service in the Regular Army. He was appointed as a Reserve second lieutenant on 8 September 1978 and he was ordered to active duty on 28 September 1978. On 27 July 1979, he was appointed as a second lieutenant in the Regular Army.
3. A review of his service record revealed he was promoted to the following ranks in the Regular Army:
Rank Effective Date/Date of Rank (DOR)
first lieutenant 28 September 1981
captain 1 July 1982
major 1 September 1990
lieutenant colonel (LTC) 1 March 1995
4. In a memorandum, dated 3 December 1998, he was approved to be frocked to the rank of COL.
5. Order Number 139-001, dated 18 May 2000, shows he was promoted to COL with an effective date and DOR of 1 June 2000.
6. Orders 022-0202, dated 22 January 2001, show he was retired from active duty effective 30 June 2001. On 1 July 2001, he was placed on the Retired List in the rank of LTC.
7. Title 10, U.S. Code, chapter 369, governs retired grades. Section 3961 states 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 Nonregular service under chapter 1223 of this title is determined under section 1370. Section 1370 states that in order to be eligible for voluntary retirement under any provision of this title in a grade above major, a commissioned officer of the Army must have served on active duty in that grade for not less than 3 years.
8. Title 10, U.S. Code, section 3964, states warrant officers and enlisted members may be advanced on the Retired List to the highest grade in which they served on active duty satisfactorily when their active service plus their service on the Retired List totals 30 years. 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:
1. The evidence of record shows the applicant was promoted to COL with an effective date and DOR of 1 June 2000.
2. He was retired from active duty on 30 July 2001 and placed on the Retired List in the rank of LTC after holding the rank of COL for only 1 year and 3 months.
3. Title 10, U.S. Code, states that in order to be eligible for voluntary retirement in a grade above major, a commissioned officer must have served on active duty in that grade for not less than 3 years. There is no provision for advancing a commissioned officer on the Retired List who retired for other than physical disability after the completion of a specific period of service. Therefore, there is no basis for granting the requested relief.
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) AR20100026581
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ABCMR Record of Proceedings (cont) AR20100026581
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