IN THE CASE OF:
BOARD DATE: 16 August 2011
DOCKET NUMBER: AR20100028713
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, in effect, correction of his records to show that he was transferred to the Retired Reserve in the rank of colonel (COL)/O-6) in lieu of lieutenant colonel (LTC)/O-5.
2. The applicant states, in effect, that the Defense Finance and Accounting Service (DFAS) informed him that an error was made on his retirement orders. He states that since he entered active duty before September 1980, he fell under the Final Pay retirement plan. He states that the originator of his retirement orders erred in presuming that because he had not completed 3 full years of service as a COL, he was not entitled to be retired as a COL, which is in error of the Final Pay policy.
3. The applicant provides:
* Orders 165-0004, Headquarters, Fort McPherson, Fort McPherson, GA, dated 13 June 2008
* Orders 207-0001, Headquarters, Fort McPherson, Fort McPherson, GA, dated 25 July 2008
* DD Form 214 (Report of Separation from Active Duty) for the period ending 19 January 1976
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 27 August 1981
* DD Form 214 for the period ending 31 July 2008
* DA Form 4037 (Officer Record Brief)
CONSIDERATION OF EVIDENCE:
1. The applicant is a retired Regular Army (RA) Soldier. His records show he was born on 25 November 1955 and entered active service on 24 January 1974. He served on active duty as an enlisted Soldier from 24 January 1974 until he was separated on 19 January 1976 as a specialist four/E-4. He returned to active duty on 28 December 1978 and served until he was honorably discharged on 27 August 1981, as a sergeant/E-5, for the purpose of enrolling in a 2-year Reserve Officers' Training Corps (ROTC) scholarship program.
2. On 11 June 1983, he was appointed as a Reserve Commissioned Officer of the Army, in the rank and pay grade of second lieutenant/O-1.
3. On 30 September 1984, he entered active duty.
4. On 1 October 2006, he was promoted to COL/O-6.
5. On 31 July 2008, he was transferred to the Retired Reserve. He was retired on 1 August 2008, under the provisions of Title 10, U.S. Code, section 3911 and Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 6-17d and 4-2b, by reason of sufficient service for retirement in the rank/grade of LTC/O-5. His DD Form 214 shows he completed a total of 28 years, 5 months, and 27 days of creditable active military service.
6. Title 10, U.S. Code, section 3911, provides, in pertinent part, that the Secretary of the Army may retire an officer, upon request, who has 20 or more years of service.
7. Title 10, U.S. Code, section 1406, establishes the retired base pay for officers who first became members of the Armed Forces prior to 8 September 1980. It provides, in pertinent part, that for members who voluntarily retire under Title 10, U.S. Code, section 3911, the base retired pay is based upon the monthly base pay of the member's retired grade (emphasis added).
8. Title 10, U.S. Code, section 1370, states that in order to be eligible for voluntary retirement under any provision of this title in a grade above major or lieutenant commander, a commissioned officer of the Army, Navy, Air Force, or Marine Corps must have served on active duty in that grade for not less than three years, except that the Secretary of Defense may authorize the Secretary of a military department to reduce such period to a period not less than two years.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that his retired grade should be changed from LTC to COL.
2. The evidence of record shows that the applicant was promoted to COL on 1 October 2006. Title 10, U.S. Code, section 1370, requires a Soldier serve for not less than three years in the promoted grade, unless that time frame is reduced to two years by the Secretary of the Army. The evidence of record shows the applicant served as a COL for 1 year and 10 months; therefore, he did not meet the two-year threshold necessary to be retired as a COL. The final pay rule has no bearing on the retired grade.
3. In view of the foregoing, there is an insufficient basis to grant relief in this case.
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) AR20090002273
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20100028713
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