IN THE CASE OF:
BOARD DATE: 5 July 2011
DOCKET NUMBER: AR20100026823
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 that his retired pay be changed to major (MAJ)/O-4.
2. He states he was promoted to MAJ in the U.S. Army Reserve (USAR) and he turned 60 years old on 25 July 2010. He was released from active duty as a captain (CPT)/O-3 on 1 January 1987 and came back on active duty on 2 January 1987 as a sergeant (SGT)/E-5. He retired as a CPT on 31 August 1992.
3. He provides:
* a memorandum informing him of his promotion to MAJ in the USAR
* retirement orders
* two DD Forms 214 (Certificate of Release or Discharge from Active Duty)
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. Following a period of enlisted service, the applicant was commissioned in the USAR on 6 March 1975. He served on active duty from the date he was commissioned until he was honorably relieved from active duty as a CPT on 1 January 1987. He enlisted in the Regular Army (RA) as a SGT on 2 January 1987 and served until he retired for length of service on 31 August 1992. He completed 20 years and 1 day of active military service.
3. On 17 August 1988, the U.S. Total Army Personnel Command (Provisional), St. Louis, MO, informed him he was promoted to MAJ as a Reserve commissioned officer of the Army effective 5 May 1988. The memorandum noted he was serving on active duty as a staff sergeant/E-6 at the time.
4. On 10 December 1991, the U.S. Total Army Personnel Command, Alexandria, VA, issued Orders S236-3 retiring him from active service, placing him on the retired list, transferring him to the USAR (Retired Reserve), and assigning him to the USAR Control Group (Retired). The orders show his retired grade of rank was CPT.
5. The record is void of documentation showing he served on active duty as a MAJ.
6. On 25 March 2003, the Army Review Boards Agency Senior Legal Advisor informed him his case could not be forwarded to the Army Grade Determination Review Board. He was informed that to be eligible to be advanced to MAJ/O-4 on the retired list he must have served on active duty in that grade for not less than 6 months. He was asked to provide documentation showing he had served on active duty as a MAJ for not less than 6 months. The record is void of evidence that he did so.
7. 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) will 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.
8. Title 10, U.S. Code, section 3964 provides that each retired RA enlisted member who is retired with less than 30 years of active service is entitled, when active service plus service on the retired list totals 30 years, to be advanced on the retired list to the highest grade in which he/she satisfactorily served on active duty, as determined by the Secretary of the Army.
DISCUSSION AND CONCLUSIONS:
The record is void of documentation showing the applicant served on active duty in the rank of MAJ. The available records show CPT was the highest rank in which he served satisfactorily on active duty, and he was placed on the retired list in that rank. In the absence of documentation showing he served on active duty satisfactorily in the rank of MAJ, he is not entitled to receive retired pay in that rank.
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) AR20100026823
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ABCMR Record of Proceedings (cont) AR20100026823
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