IN THE CASE OF:	  

		BOARD DATE:	  6 September 2011

		DOCKET NUMBER:  AR20110004198


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 DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he retired in the rank/grade of major (MAJ)/O-4.  

2.  The applicant states he was retired as a MAJ.

3.  The applicant provides:

* letter, subject: Approval of Extension of Service, dated 21 April 1969
* letter, subject: Promotion as a Reserve Commissioned Officer of the Army under Title 10 of the U.S. Code, dated 4 January 1980
* letter, subject: Voluntary Retirement, dated 11 April 1980
* Orders S119-7, U.S. Army Military Personnel Center (MILPERCEN), Alexandria, VA, dated 18 June 1980
* DA Form 3713 (Data for Retired Pay), dated 18 June 1980
* Orders 132-1, Headquarters, 1st Infantry Division (Mechanized), Fort Riley, KS, dated 9 July 1980
* DD Form 214
* letter, subject: Request for Statement of Service, dated 12 July 1991
* letter, official statement of service, dated 21 November 1991
* DA Form 4037 (Officer Record Brief) (2 pages)
* DA Form 2-1 (Personnel Qualification Record – Part II)

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 applicant’s 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 applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  On 24 February 1967, after previous enlisted service and graduation from Officer Candidate School, the applicant was appointed as a Reserve commissioned officer of the Army, in the rank/grade of second lieutenant/O-1.  
On this date, he simultaneously entered active service after 6 years, 4 months, and 26 days of previous active service.  

3.  On 24 February 1969, he was promoted in the Army of the United States (AUS) to captain (CPT).

4.  On 9 February 1973, he was promoted as a Reserve commissioned officer of the Army to CPT, effective 23 February 1973.

5.  On 4 January 1980, he was promoted as a Reserve commissioned officer of the Army to MAJ, effective 22 February 1980.  His promotion notification letter states:

If you are serving on active duty in a commissioned grade lower than that to which promoted you may elect to be released from active duty and receive your promotion after your release from active duty, provided you do not have an uncompleted period of active duty under law or regulations…  If you do not elect to be relieved from active duty, you may expressly decline the promotion.  If you do not decline the promotion and remain on active duty, you will be deemed to have accepted a temporary (AUS) appointment in the grade in which serving on active duty and your promotion as a Reserve officer will not affect your active duty grade (emphasis added).

6.  Orders S119-7, dated 18 June 1980, show he was to be retired in the rank/grade of MAJ/O-4 effective 30 September 1980.
7.  On 30 September 1980, he was honorably retired after completing 20 years and 3 days of total active service.  Item 4a (Grade, Rate, or Rank) of his DD Form 214 shows his rank as CPT and item 4b (Pay Grade) shows his pay grade as O-3.

8.  He provides:

* DA Form 3713, dated 18 June 1980, which shows his active duty grade as CPT, but also shows his retired grade, permanent grade, and highest grade held as MAJ
* Orders 132-1, Headquarters, 1st Infantry Division (Mechanized), Fort Riley, KS, dated 9 July 1980, which shows his rank at the time of his separation as CPT

9.  Army Regulation 635-5 (Separation Documents) serves as the authority for the preparation of the DD Form 214.  It provides, in pertinent part, that the DD Form 214 will be prepared to reflect an individual's service as it exists on the date of release from active duty, discharge, or retirement.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for correction of his DD Form 214 to show he retired in the rank/grade of MAJ/O-4 was carefully considered; however, there is insufficient evidence to support his request.

2.  The applicant held simultaneous appointments in the AUS and Reserve component of the Army.  He was promoted to MAJ in the Reserve component of the Army; however, he was not promoted in the AUS.  His promotion notification memo clearly stated that acceptance of his Reserve promotion and retention on active duty would not affect his active duty grade; 

3.  His DD Form 214 should reflect his rank and grade while serving on active duty.  Accordingly, his DD Form 214 was correctly prepared and he is not entitled to the requested relief.  

4.  However, as a matter of equity, there is no harm to the Army or the Soldier if item 18 (Remarks) of his DD Form 214 is amended to reflect his Reserve promotion.  





BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ___X____  ___X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is 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 amending item 18 of his DD Form 214 to add the entry "Promoted as a Reserve commissioned officer of the Army to MAJ effective 22 February 1980." 

2.  The Board further determined 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 amending items 4a and 4b of his DD Form 214 to show his rank/grade as MAJ.



      _____________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)                                         AR20090005877



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ABCMR Record of Proceedings (cont)                                         AR20110004198



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