IN THE CASE OF:	  

		BOARD DATE:	  7 July 2011

		DOCKET NUMBER:  AR20110010091 


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 restoration of his retired rank to major general (MG).

2.  The applicant states he held the rank of MG for more than 2 years on active duty.  He continues by providing the following statements:

	a.  He received retirement benefits for 9 years commensurate with his MG rank and pay grade (O-8).  For these reasons he believed he had properly retired in the rank of MG, pursuant to the authority granted to the Secretary of Defense (or his designee) in Title 10, U.S. Code, section 1370(a)(2).

	b.  In September 2010, 9 years after his retirement, he was informed for the first time that his retirement rank/grade was in error and that his retirement rank/grade should have been as a brigadier general (BG)/O-7.  He was instructed to return approximately $96,000.00 in overpayment, which he promptly paid.

	c.  He seeks no adjustment or increase to his current pay grade of O-7 as part of his request for correction of his military records.  However, in order to prevent unjust personal hardship and manifest unfairness, and for reasons described below and in accordance with Title 10, U.S. Code, section 1370(a)(2), he requests that the Board correct his military records to reflect a retirement rank/grade of MG/O-8.

	d.  He states that after his wife of many years passed away, it grew painful for him to serve without her by his side.  Therefore, he requested voluntary retirement to be effective 1 October 2001, which was granted effective 1 September 2001.  He adds that in honor of his honorable service he was awarded the President's Distinguished Service Medal.

	e.  Based on his retirement paperwork he was led to believe that he was entitled to retire in the rank of MG.  In connection with his retirement his DD Form 214 (Certificate of Release or Discharge from Active Duty), DD Form 363A (Certificate of Retirement), and DD Form 2 (Retired) (U.S. Uniformed Services Identification Card) all indicated that he was retired in the rank of MG.

   f.  He understands that in order to be eligible for retirement at a grade above major, a commissioned officer of the Army must have served on active duty in that grade for not less than 3 years in accordance with Title 10, U.S. Code, section 1370(a)(2)), unless the Army approved a reduction in the service requirement to allow officers with not less than 2 years of active service at their current rank, like himself, to retire at full rank.  He adds that while his initial retirement orders listed his rank as BG, his subsequent final transition orders (which post-dated his retirement orders) and all of his other retirement documentation from the Army listed his rank as MG, leading him to believe that the Army had exercised its statutory authority to permit him to retire at his highest rank.  He further states that for 9 years after his retirement his official officer profile maintained by the General Officer Management Office (GOMO) listed his rank as MG, although the GOMO recently revised his profile to classify him as a retired BG.

	g.  Based on his understanding that the Army permitted him to retire as a MG, he has long honorably held himself out publicly and in official business as a retired MG.  He provides examples of this, such as being nominated for a position by the President, induction into the Military Intelligence Hall of Fame, and conduct of official business activities with the understanding that he was a retired MG.  He adds that if his retired rank does not show MG, it may also incorrectly be viewed as being that he was recently demoted to BG for not having served honorably as a MG, which is not the case.  He adds that he will unfairly suffer particular hardship if his rank is not restored since the rank on his deceased wife's headstone would be changed from MG to show BG.

3.  He states that as part of his request he does not seek, and affirmatively waives, any entitlement to a higher pay grade, or restoration of his previous O-8 status that would otherwise accompany the restoration of his rank to retired MG.

4.  The applicant provides copies of his DD Form 214, DD 363A, DD Form 2, GOMO résumé prior to September 2010, GOMO résumé post-September 2010, Defense Finance and Accounting Service (DFAS) payment confirmation, promotion orders, Congressional Record of Senate Approval of promotion to MG, letter requesting voluntary retirement, Distinguished Service Medal Award, retirement orders, transition orders, Congressional testimony on diversity, White House press release on his nomination, headstone of his wife at Arlington National Cemetery, and a printout of the statutory exception to 3-year service requirement – Title 10, U.S. Code, section 1370(a)(2).

CONSIDERATION OF EVIDENCE:

1.  While serving on active duty in the Regular Army (RA), Order Number
251-013, issued by Department of the Army, U.S. Total Army Personnel Command (TAPC), Alexandria, VA, dated 8 September 1999, promoted him to the rank of MG with an effective date and date of rank of 1 October 1999.

2.  He provided a copy of his letter wherein he applied for voluntary retirement with a requested date of retirement of 1 October 2001.  In this letter he indicated he had read and understood the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 6-1(c), pertaining to determination of his retired grade.  He indicated that considering those provisions, he believed he was entitled to retire in the grade of BG.  He further indicated he understood that a final determination of his retired grade would be made by the Secretary of the Army, and that he would be informed if he was not entitled to retire in the grade of BG.

3.  The DD Form 214 he was issued in conjunction with his retirement shows he was retired effective 31 August 2001 for sufficient service for retirement.  This form shows his rank and pay grade as MG/O-8 and that he completed 32 years, 4 months, and 13 days of creditable active service.

4.  Orders S62-1, issued by TAPC, dated 12 July 2001, shows he was placed on the retired list effective 1 September 2001 in the retired rank of BG.

5.  Army Regulation 600-8-24 provides that an RA commissioned officer with 30 years of service may, upon his/her request and the approval of the Secretary of the Army, be retired in accordance with Title 10, U.S. Code, section 3918.

6.  Army Regulation 600-8-24, paragraph 6-1, provides that a commissioned officer must serve on active duty 3 years in grade to retire in the rank above major and below lieutenant general.

7.  Title 10, U.S. Code, section 1370(a)(2), states that in order to be eligible for voluntary retirement under any provision of this title in a grade above major, a commissioned officer of the Army 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.

8.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  It provides a brief, clear-cut record of active service at the time of release from active duty, retirement or discharge.  It provides that the active duty grade or rank and pay grade at the time of separation would be entered in item 4a (Grade, Rate or Rank) and item 4b (Pay Grade).

DISCUSSION AND CONCLUSIONS:

1.  The applicant was promoted to MG effective 1 October 1999 and placed on the retired list on 1 September 2001.  Therefore, he served 1 year and 11 months on active duty in the rank of MG.  There is no evidence he requested a waiver of the requirement that a commissioned officer must serve on active duty 3 years in grade to retire in rank above major and below lieutenant general due to extreme hardship or exceptional or unusual circumstances.  However, even if he had requested a waiver, there is no provision of law for granting a waiver to a commissioned officer who served less than 2 years in that rank while on active duty.

2.  His DD Form 214, DD Form 363A, and Orders S62-1 correctly identified him with the rank as MG/O-8 as this was his active duty rank and pay grade at the time of separation.  It is noted that he stated he was aware he would be retired as a BG in his application for retirement and his retirement orders showed his retired grade as BG.  While DFAS made an error when it paid him at the rank and pay grade of MG/O-8 for approximately 9 years, his retirement rank of BG is correct and there is no reason to change it.  It is understandable that he would like to have his records show a retired rank of MG.  Regrettably, there is no basis for granting his request.

3.  Although there is no basis to correct the applicant's records to show his retired rank as MG, this does not mean he is prevented from stating he served in the Army as a MG.  His placement on the retired list as a BG occurred by operation of statute and not due to the nature of his service.  The applicant's outstanding record clearly shows he served satisfactorily in the grade of MG.  For him to hold to others that he served as a MG would be an accurate and appropriate statement.  The Army acknowledges and thanks the applicant for his dedicated and distinguished service throughout his career, to include his service in the rank of MG. 

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.




      __________XXX__________
               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)                                         AR20110010091



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ABCMR Record of Proceedings (cont)                                         AR20110010091



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