IN THE CASE OF:
BOARD DATE: 30 August 2011
DOCKET NUMBER: AR20110002801
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 reconsideration of his previous application to restore his retired pay in the rank/pay grade of colonel/O-6, the highest grade in which he satisfactorily served in the U.S. Army Reserve (USAR).
2. The applicant states he was selected for promotion to the rank of colonel on 19 June 2009 and his retirement orders effective 11 November 2009 list him as a colonel; however, he received notification from the Defense Finance and Accounting Service (DFAS) that he will receive his retired pay as a lieutenant colonel.
3. The applicant provides:
* a self-authored statement
* a memorandum from U.S. Army Human Resources Command (HRC), dated 30 May 2009
* a memorandum to HRC, dated 3 June 2009
* a blank AHRC FL 788-2-E (Election of Options Maximum Age)
CONSIDERATION OF EVIDENCE:
1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20100009890 on 2 November 2010.
2. The applicant did not provide any new evidence; however, he provides a new argument which was not previously reviewed by the Board. Therefore, it is considered as new evidence and warrants consideration by the Board.
3. The applicant contends the Board's decision to deny his application was based on him requesting retirement benefits. The applicant claims he did not request retirement benefits and, in fact, submitted a request to HRC on 3 June 2009 to extend his mandatory retirement date (MRD) by 1 year to 30 November 2010 to coincide with attainment of the maximum age of 60. Therefore, the Board's decision was erroneous.
4. The applicant was born on 11 November 1949 and was appointed as a USAR warrant officer one physician's assistant in 1981 and was later converted to commissioned officer status. He continued to serve, received his 20-year letter on 27 June 2001, and was promoted to the rank of lieutenant colonel on 24 October 2004.
5. On 6 March 2009 at the age of 59 years and 4 months, he submitted a request for extension of his MRD to HRC.
6. On 19 June 2009, the applicant was promoted to the rank of colonel. In July 2009 his request for an MRD extension was boarded by HRC officials with a recommendation to extend his MRD until 1 December 2010. The recommendation was forwarded to the Adjutant General Directorate-West, the approval authority for final action.
7. Concurrent with the applicant's request to extend his MRD, he submitted a request for retired pay benefits.
8. On 2 September 2009, orders were published which directed his placement on the Retired List in the rank of colonel effective 11 November 2009. He had served 4 months and 23 days in grade as a colonel.
9. An entry in the Soldier Management System (SMS), dated 13 November 2009, shows the applicant contacted officials at HRC and requested the records system be corrected to show him as retired.
10. An entry in SMS, dated 24 November 2009, shows officials at the Adjutant General Directorate-West determined since his request for retired pay benefits
had been acted on by DFAS, he was no longer eligible for an MRD extension and closed his action without further action.
11. Title 10, U.S. Code, section 1370, provides 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 3 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 2 years.
12. In the original Board consideration, the Record of Proceedings had cited that portion of the law that applied to officers in the grade of major or below (i.e., must have served on active duty in that grade for not less than 6 months).
DISCUSSION AND CONCLUSIONS:
1. Unfortunately, the previous Board erroneously cited a portion of the law which is inapplicable to the matter at hand.
2. It appears the Board denied his application based on a request for retirement benefits. Although he contends he did not request retirement benefits an entry in SMS indicates he requested, before his request for MRD extension was acted upon, that the system be corrected to show him retired. Receipt of retired pay is not automatic; it must be applied for.
3. In addition, the evidence of record shows the applicant did not successfully serve the minimum 3 years (unless reduced to 2 years by proper authority) required by law to receive retired pay at the highest grade successfully held, in this case, the rank/grade of colonel/O-6.
4. Despite a recommendation for approval of his MRD extension, the action was not approved by the proper authority prior to the applicant's placement on the Retired List on 11 November 2009 and it would not have enabled him to meet the grade requirement set forth in Title 10, U.S. Code, section 1370.
5. In view of the foregoing, his retired pay at the highest grade successfully held was properly determined. The applicant has not demonstrated the existence of any error or injustice in the establishment of his retired pay grade. Therefore, he is not entitled to 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 the overall merits of this case are
insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20100009890, dated 2 November 2010.
____________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) AR20110002801
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20110002801
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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