IN THE CASE OF:	  

		BOARD DATE:	  13 December 2011

		DOCKET NUMBER:  AR20110012984 


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 records to show his retired rank as major (MAJ).

2.  The applicant states, in effect, that he was promoted to MAJ and retired as a captain.  He has been recalled to active duty in the rank of MAJ twice.  This time should be recomputed so his retirement grade reflects MAJ.

3.  The applicant provides the following:

* self-authored statement
* excerpt from Army Regulation 600-8-29 (Officer Promotions)
* promotion memorandum 
* letter from the U.S. Army Finance and Accounting Center
* retirement orders
* DA Form 3713 (Data for Retired Pay)
* two DD Forms 214 (Certificate of Release or Discharge from Active Duty
* three recall to active duty orders 
* orders releasing him from active duty
* information paper
* Officer Record Brief

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, and 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.  The applicant is currently serving on active duty in the grade of MAJ/O-4.  His Officer Record Brief shows his date of rank for MAJ is 19 May 1987.

3.  His records contain a copy of his retirement orders which show he served as a dual-component Soldier.  He served on active duty as a staff sergeant/E-6 and as a Reserve Component Soldier as a MAJ/O-4.

4.  His records contain a U.S. Army Reserve Personnel Command (ARPC) Form 249-E (Chronological Statement of Retirement Points).  This form shows he accrued 0 years, 0 months, and 0 days of creditable service qualifying for retirement as a MAJ prior to his retirement.

5.  The applicant provides an excerpt of Army Regulation 600-8-29 (Officer Promotions), chapter 1, paragraph 1-18c, highlighting the active duty service obligation for MAJ as 6 months.

6.  His records contain the following orders recalling him to active duty in a retired status in the grade of MAJ under Title 10, U.S. Code, section 688:

* orders, dated 29 February 2008, for the period 16 April 2008 through 9 April 2009
* orders, dated 21 May 2010, for the period 21 June 2010 through 19 June 2011
* orders, dated 21 April 2011, for the period 20 June 2011 through 18 June 2012

7.  Army Regulation 600-8-29 states the active duty service obligation is a specific period of active duty an officer must serve before being eligible for voluntary separation or retirement.  To retire or separate in the next higher grade, the officer must serve satisfactorily in the new grade for a designated period of time.  Officers in the grade of MAJ must serve 6 months.

8.  Title 10, U.S. Code, section 689, states a retired member ordered to active duty under section 688 or 688a of this title who has previously served on active duty satisfactorily, as determined by the Secretary of the Military Department concerned, in a grade higher than that member's retired grade may be ordered to active duty in the highest grade in which the member had so served satisfactorily.  If, upon being released from that tour of active duty, such a retired member has served on active duty satisfactorily, as determined by the Secretary concerned, for not less than a total of 36 months in a grade that is a higher grade than the member's retired grade, the member is entitled to placement on the Retired List in that grade.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his retired rank be corrected to show MAJ has been carefully considered and was determined to lack merit.

2.  His ARPC Form 249-E shows he did not meet the required qualifying time to retire in the grade of MAJ.

3.  The applicant provided a copy of an excerpt of Army Regulation 600-8-29 that states he required 6 months of active duty service in the grade of MAJ to be retired at that grade.  A Reserve officer accumulates time in terms of Reserve retirement points.  These points are added together to account for years, months, and days.  The evidence shows he did not earn any active duty retirement points as a MAJ prior to his retirement date.  Therefore, he did not meet the minimum active duty service of 6 months as set forth in Army Regulation 600-8-29.

4.  The applicant's pay should not be adjusted on the basis of AR 600-8-29.  This regulation refers to the appropriate time in grade prior to retirement, not after.  It is noted that he has completed several tours as a recalled retiree, however his time and grade should not be recalculated until he has served 36 months as a recalled retiree in the grade of MAJ.

5.  The law states a retired member ordered to active duty may be placed on the Retired List in the grade he or she was ordered to active duty providing he or she has served at least 36 months in a grade that is a higher grade than the member's retired grade.  He has not currently met the eligibility criteria of this code.  He will not complete his active duty 36-month requirement until 18 June 2012.  Therefore it would be inappropriate to grant his requested relief.

6.  The applicant is encouraged to notify his transition center of his entitlement in accordance with Title 10, U.S. Code, section 689, to have his time in grade recalculated and to be placed on the Retired List as a MAJ upon completion of his current tour of duty on 18 June 2012.

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 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)                                         AR20110012984



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ABCMR Record of Proceedings (cont)                                         AR20110012984



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