IN THE CASE OF:	  

		BOARD DATE:	    25 August 2011

		DOCKET NUMBER:  AR20110002860 


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 correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 31 January 2010 to show he retired from active duty in the rank/grade of lieutenant colonel (LTC)/O-5.

2.  The applicant states he was serving in the rank/grade of major (MAJ)/O-4 at the time his DD Form 214 was prepared; however, he was promoted to LTC while he was on transition leave.

3.  The applicant provides a copy of his DD Form 214 and promotion orders.

CONSIDERATION OF EVIDENCE:

1.  The applicant had prior honorable enlisted service in the Regular Army (RA) from 2 December 1988 through 27 January 1993.

2.  He was appointed as a Reserve commissioned officer on 28 January 1993.

3.  The applicant's Officer Record Brief (ORB), dated 5 September 2008, shows his rank as MAJ with a permanent date of rank (PDOR) of 1 January 2004.

4.  Orders Number 327-008, issued by the U.S. Army Human Resources Command (USAHRC), Alexandria, VA, dated 23 November 2009, announced the applicant's promotion with an effective date and date of rank of 1 December 2009.  However, this order does not show the grade of rank to which promoted.


5.  However, USAHRC published another document, undated, that contains the same verbiage as in Orders Number 327-008 concerning the applicant's promotion and includes his promotion rank of LTC.

6.  Orders 076-0624, issued by Headquarters, 101st Airborne Division (Air Assault), Fort Campbell, KY, dated 17 March 2009, show in:

	a.  paragraph 1, that the applicant was reassigned to the U.S. Army Transition Center, Fort Campbell, KY, for separation processing with a reporting date of
31 January 2010.  The standard name line of the orders shows the applicant's rank as "MAJ," and

	b.  paragraph 2, that the applicant was retired from active duty effective
31 January 2010 and placed on the Retired List in the rank of MAJ, effective
1 February 2010.  He had 21 years, 1 month, and 29 days of service for voluntary retirement.

7.  The applicant's DD Form 214 for this period shows he was retired from the RA on 31 January 2010 under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 6-13c(2), by reason of sufficient service for retirement.  He completed 17 years and 3 days of net active service this period, and 4 years, 1 month, and 26 days of prior active service.  This DD Form 214 further shows in:

* Item 4a (Grade, Rate or Rank) the entry "MAJ"
* Item 4b (Pay Grade) the entry "O04"
* Item 12h (Record of Service - Effective Date of Pay Grade) the entry "2004 01 01" [i.e., 1 January 2004]

8.  The applicant's military personnel records do not contain any evidence that he declined promotion to LTC/O-5.

9.  In the processing of this case, a staff member of the Army Board for Correction of Military Records (ABCMR) contacted the Officer Promotion Orders Section, USAHRC, Fort Knox, KY, concerning the applicant's promotion.  An official confirmed that there was no record that the applicant's promotion orders were revoked.

10.  Army Regulation 600-8-29 (Officer Promotions) prescribes policies and procedures governing promotion of Army commissioned and warrant officers on the active duty list.  It also precludes promoting the officer who is not eligible or becomes disqualified, thus providing an equitable system for all officers.
   a.  Chapter 1 (Introduction), paragraph 1-18, provides that unless a commissioned officer declines a promotion in writing under the provisions of chapter 5 (Processing Promotion Lists), he/she is considered to have accepted the promotion on the effective date announced in the promotion order.

   b.  An officer accepting a promotion to LTC/O-5 does not incur an additional service obligation; however, to retire or separate in the next higher grade, the officer must serve satisfactorily in the new grade (i.e., LTC/O-5) for 3 years.

11.  Army Regulation 635-5 (Personnel Separations - Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It also establishes standardized policy for preparing and distributing the DD Form 214.

	a.  Chapter 2 contains guidance on the preparation of the DD Form 214.  It states that the source documents for entering information on the DD Form 214 will be the ORB, separation approval authority documentation, separation orders, or any other document authorized for filing in the Official Military Personnel File.

	b.  Item 4 (Grade, Rate or Rank) states enter the active duty grade or rank and pay grade at time of separation from the ORB.

	c.  Item 12h, states from the most recent promotion order, enter the effective date of promotion of the current pay grade.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 should be corrected to show he was promoted to LTC/O-5 and retired from active duty in that grade because orders were issued promoting him to LTC while he was on transition leave and prior to his separation date.

2.  There is no evidence of record, and the applicant provides insufficient evidence, to show he was on transition leave prior to his separation processing.  However, this is not the overriding issue in this case.

3.  Records show that USAHRC issued orders promoting the applicant to
LTC/O-5 effective 1 December 2009.  There is no evidence the applicant declined promotion to LTC or that the promotion orders were revoked.


4.  By regulation, the rank and pay grade held on the date of separation will be entered in item 4a and item 4b of the DD Form 214, and the effective date of promotion will be entered in item 12h.  The evidence of record confirms the applicant was promoted to LTC/O-5, effective 1 December 2009, and that he held that rank/grade on the effective date of his separation from the RA on
31 January 2010.  Therefore, it would be appropriate to correct items 4a, 4b, and 12h of his DD Form 214 accordingly.

5.  The evidence of record shows that in order to retire in the rank/grade of LTC/O-5, an officer must satisfactorily serve in the new rank/grade for 3 years after accepting the promotion in order to retire in the new grade.  Despite any evidence that the applicant declined the promotion that was scheduled for
1 December 2009, based on the applicant's rank and length of active duty service, it is reasonable to conclude that he was aware of this requirement for retirement in his new rank/grade.

6.  Records show the applicant completed separation processing on 31 January 2010 and he was placed on the Retired List in the rank/grade of MAJ (O-4). Based on the evidence of record, his retired rank/grade on the Retired List is correct.  Therefore, there is no basis for amending his rank/grade on the Retired List.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X___  ___X____  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  deleting from item 4a of his DD Form 214 for the period ending 31 January 2010 the entry "MAJ" and replacing it with the entry "LTC";


	b.  deleting from item 4b of his DD Form 214 for the period ending 31 January 2010 the entry "O04" and replacing it with the entry "O05"; and

	c.  deleting from item 12h of his DD Form 214 for the period ending
31 January 2010 he entry "2004  01  01" and replacing it with the entry
"2009  12  01."

2.  As a result of the foregoing correction, the Defense Finance and Accounting Service shall be notified to provide the applicant the difference of pay and allowances (less taxes and withholdings) due as a result of his promotion to
LTC/O-5, effective 1 December 2009 through 31 January 2010.

3.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to correcting the applicant's rank/grade on the Retired List.



      _______ _  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)                                         AR20110002860



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ABCMR Record of Proceedings (cont)                                         AR20110002860



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