IN THE CASE OF:	  

		BOARD DATE:  9 October 2012

		DOCKET NUMBER:  AR20110018033 


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 DA Form 2339 (Application for Voluntary Retirement) be corrected to reflect his highest grade held as Brigadier General (BG)/O-7 instead of colonel (COL)/O-6.  

2.  The applicant states:

* He was promoted to BG/O-7 in the Army National Guard (ARNG) on       10 February 2000; his retirement order shows his rank as BG
* He understands his retired pay would continue to be based on the   COL/O-6 pay since he did not serve 3 years in the rank of BG
* He only wants the change so when his retired identification card is renewed in 2014, it would reflect the actual highest rank held, that of BG

3.  The applicant provides:

* Promotion to BG Memorandum, dated 10 February 2000
* Letter to the U.S. Army Reserve Personnel Command
* Orders 046-013, retirement orders
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* DD Form 108 (Application for Retired Pay Benefits)


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.  The applicant was appointed as a Reserve commissioned officer of the Oklahoma ARNG (OKARNG) and executed an oath of office on 3 September 1971.  

3.  He served in a variety of staff or leadership position and he was promoted to COL/O-6 on 18 March 1993. 

4.  On 10 February 2000, the NGB issued him a promotion memorandum.  It announced his promotion to BG (line), effective 10 February 2000, under the authority of sections 12203 and 12211(a), Title 10, U.S. Code.  

5.  On 15 February 2001, the OKARNG published Orders 046-013 announcing his retirement, effective 28 February 2001, in the rank/grade of COL/O-6.

6.  On 28 February 2001, he submitted a DD Form 108, wherein he applied for retired pay.  He indicated he desired his retired pay to begin on 1 March 2001 and that the highest grade he held was that of COL/O-6.

7.  He was honorably retired on 28 February 2001 after completing over 20 years of active service.  His NGB Form 22, items 5a (Rank) and 5b (Pay Grade), show the entries "BG" and "O-7" respectively and item 6 (Date of Rank) shows the entry 10 February 2000.

8.  On 1 March 2001, the OKARNG published Orders 060-13 ordering his separation from the ARNG and transfer to the retired reserve effective 28 February 20001.  The orders listed his rank as "BG" in the standard name line. 

9.  On 15 March 2001, the NGB published Special Order GO-074-01 announcing the withdrawal of Federal recognition from the applicant by reason of having transferred to the Retired Reserve, effective 28 February 2001.

10.  An advisory opinion was obtained on 23 August 2012 from the NGB in the processing of this case.  The advisory official recommended disapproval of the applicant's request because he did not hold the grade of BG for the minimum time specified by Title 10, U.S. Code (USC), section 1370, of 3 years.  The official stated:

	a.  The applicant states he was promoted to BG/07 on 10 February 2000 and that his retirement order reflects his rank as BG.  He requests his DA Form 2339, Application for Voluntary Retirement, be corrected to reflect the highest rank held.

	b.  The applicant retired with a regular retirement as a COL.  He did not meet the minimum time in grade (TIG) (on active duty) requirements of Title 10, USC, section 1370 that requires 3 years TIG for a voluntary or 6 months for an involuntary separation.  In fact, his orders indicate his retirement was voluntary.  His NGB Form 23B indicates he only served on active duty for 160 days as a BG. The Soldier Management System shows his mandatory removal date as 10 February 2005 and if this is correct, then it validates the voluntary retirement status.

	c.  The only way he could have received his BG rank was if he was eligible to "re-retire" at age 60, via Title 10, USC, section 12741.  Unfortunately, he does not meet the 2-year minimum time in service (TIS) as an M-day Soldier (minus any active duty points).  While he served as an M-day for 2 years, 5 months and 0 days - he had 10 months and 28 days of active duty time and it takes him below the 2-year requirement.  His BG position was a General of the Line, not an Adjutant General or Assistant Adjutant General (TAG/ATAG) position and therefore is not eligible for the 1-year TIS exception. 

	d.  Lastly, according to Army Regulation 600-8-14 (Identification Cards for Members of the Uniformed Services, Their Eligible Family Members, and Other Eligible Personnel), Table 14.3, the ID card requires the use of the retired grade, which is COL in this case.  

11.  He concurred with the advisory opinion via email on 4 October 2012. 

12.  Title 10, USC, section 1370 (Commissioned Officers, General Rules, Exceptions) states in:

	a.  1370(a)(1): Unless entitled to a higher retired grade under some other provision of law, a commissioned officer (other than a commissioned warrant officer) of the Army, Navy, Air Force, or Marine Corps who retires under any provision of law other than chapter 61 or chapter 1223 of this title shall, except as provided in paragraph (2), be retired in the highest grade in which he served on active duty satisfactorily, as determined by the Secretary of the military department concerned, for not less than six months.

	b.  1370(a)(2): 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 three 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 two years.

	c.  1370(b): An officer whose length of service in the highest grade he held while on active duty does not meet the service in grade requirements specified in subsection (a) shall be retired in the next lower grade in which he served on active duty satisfactorily, as determined by the Secretary of the military department concerned, for not less than six months.

DISCUSSION AND CONCLUSIONS:

The applicant was promoted to BG/O-7 on 10 February 2000.  He voluntarily retired on 28 February 2001.  He completed 1 year and 18 days as a BG.  Nothing in his records suggests his retirement was involuntary.  By law, he would have needed 3 years of time in grade to retire in the rank/grade of BG/O-7.  Regretfully, 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 that 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)                                         AR20110018033





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ABCMR Record of Proceedings (cont)                                         AR20110018033



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