IN THE CASE OF:
BOARD DATE: 21 June 2012
DOCKET NUMBER: AR20110022239
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 record to show he was retired in the rank/pay grade of major (MAJ)/O-4, the highest grade he satisfactorily held.
2. The applicant states not all of the paperwork he provided with this request was included with the paperwork that constituted his retirement package.
3. The applicant provides:
* Special Orders Number 88AR, National Guard Bureau (NGB), Washington, DC, dated 4 May 1972
* Special Orders Number 121AR, NGB, dated 23 June 1975
* Special Orders Number 174 AR, NGB, dated 7 September 1978
* Memorandum, U.S. Army Reserve Personnel Center (ARPERCEN), St. Louis, MO, dated 12 June 1986, with 1st Endorsement, dated 25 August 1986
* Memorandum, ARPERCEN, St. Louis, MO, dated 16 October 1987
* Memorandum, U.S. Total Army Personnel Command (TAPC), St. Louis, MO, dated 24 November 1992
* Memorandum, TAPC, St. Louis, MO, dated 29 November 1993
* DD Form 4 (Enlistment/Reenlistment Document Armed Forces of the United States), dated 8 December 1995
* NGB Form 23B (Army National Guard Retirement Points History Statement)
* Orders P08-949688, U.S. Army Human Resources Command (HRC), St. Louis, MO, dated 5 August 2011
* NGB Form 22 (Report of Separation and Record of Service)
* DD Form 363A (Certificate of Retirement), dated 1 March 2011
* Memorandum for Record, Joint Force Headquarters, Oregon Army National Guard (ORARNG), dated 4 April 2012
CONSIDERATION OF EVIDENCE:
1. The applicant was born on 6 July 1950.
2. On 25 February 1970, he enlisted in the ORARNG. On 30 April 1972, he completed the Officer Candidate School and was discharged from the ORARNG.
3. On 1 May 1972, he was appointed as a Reserve commissioned officer of the Army, in the rank/grade of second lieutenant/O-1, in the ORARNG.
4. On 30 April 1975, he was promoted in the ORARNG to the rank/grade of first lieutenant/O-2, and on 29 April 1978, he was promoted in the ORARNG to the rank/grade of captain/O-3.
5. On 1 August 1986, he tendered his resignation as an ARNG officer and requested transfer to the U.S. Army Reserve Control Group (Reinforcement). On 24 September 1986, he was honorably released from the ORARNG and transferred to the U.S. Army Reserve Control Group (Stand-by).
6. On 16 October 1987, he was promoted as a Reserve commissioned officer of the Army, to the rank/grade of MAJ/O-4, effective 25 September 1986.
7. His record contains 2 different memorandums from TAPC, dated 24 November 1992 and 29 November 1993. These memoranda informed him he had been non-selected for promotion to the next higher grade. The second memorandum, dated 29 November 1993, informed him that his second non-selection would result in his separation from the Army Reserve. No such separation order is available for review; however, his NGB Form 23C (ARNG Retirement Points History Statement Application for Retirement Pay) indicates he had a non-military, civilian break in service from 5 April 1994 through 7 December 1995.
8. On 8 December 1995, he enlisted in the ORARNG for a 3-year term, in the rank/grade of sergeant/E-5.
9. On 3 December 1999, he was promoted to the rank/grade of staff sergeant (SSG)/E-6.
10. On 22 May 2000, a Notification of Eligibility for Retired Pay at Age 60 pertaining to the applicant was issued by the Department of the Army and Air Force, Oregon Military Department. It confirmed he had completed the required years of service and was eligible for retired pay at age 60 upon application.
11. On 6 July 2010, he reached 60 years of age.
12. Orders 062-010, Joint Force Headquarters, ORARNG, dated 3 March 2011, show he was to be retired in the rank/grade of SSG/E-6, effective 28 February 2011.
13. Orders P08-949688, HRC, St. Louis, MO, dated 5 August 2011, placed him on the Retired List, in the retired rank/grade of SSG/E-6, effective 1 March 2011.
14. Title 10 of the U.S. Code, section 1406 provides the legal authority for establishing the retired pay base for members who first became members before 8 September 1980. Paragraph (b) (2) contains guidance on non-regular service retirement under the provisions of Title 10, USC, section 12731. It states, in pertinent part, that in the case of a person who is entitled to retired pay under section 12731 of this title, the retired pay base is the monthly basic pay, determined at the rates applicable on the date when retired pay is granted, of the highest grade held satisfactorily by the person at any time in the armed forces. For purposes of the preceding sentence, the highest grade in which a person served satisfactorily as an officer shall be determined in accordance with section 1370(d) of this title.
15. Title 10 of the U.S. Code, section 1370 provides the legal authority for establishing the highest grade held for commissioned officers who are retired from service. Paragraph (d) applies to officers who are retired with a non-regular retirement. It states the following:
a. Sub-paragraph (1) states that unless entitled to a higher grade, or to credit for satisfactory service in a higher grade, under some other provision of law, a person who is entitled to retired pay under chapter 1223 of this title shall, upon application under section 12731 of this title, be credited with satisfactory service in the highest grade in which that person served satisfactorily at any time in the armed forces, as determined by the Secretary concerned in accordance with this subsection.
b. Sub-paragraph (2) states that in order to be credited with satisfactory service in an officer grade (other than a warrant officer grade) below the grade of lieutenant colonel or commander, a person covered by paragraph (1) must have served satisfactorily in that grade (as determined by the Secretary of the military department concerned) as a reserve commissioned officer in an active status, or in a retired status on active duty, for not less than six months.
DISCUSSION AND CONCLUSIONS:
1. The applicant's request for correction of his record to show he was retired in the rank/pay grade of major (MAJ)/O-4, the highest grade satisfactorily held, was carefully considered.
2. The evidence of record in this case confirms the applicant was promoted to MAJ/O-4 on 25 September 1986, and he served in that rank/grade until he was separated from service on or about 4 April 1994.
3. By law, in connection with a non-regular retirement, commissioned officers are entitled to receive retired pay in the highest grade held satisfactorily in an active status at any time in the Armed Forces. The evidence of record in this case confirms he served satisfactorily in the rank/grade of MAJ/O-4, the highest grade he held.
4. In view of the facts of this case, his record should be corrected to show he was authorized to receive non-regular retired pay based on the rank/grade of MAJ/O-4, effective 1 March 2011, the date he was placed on the Retired List. Further, it would be appropriate to provide him all back retired pay due as a result.
BOARD VOTE:
___x____ ____x___ ____x____ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing his retired rank/grade was established as MAJ/O-4, and he was authorized to receive retired pay in that grade as of 1 March 2011, the date he was placed on the Retired List, and by providing him all back retired pay due as a result.
____________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) AR20110022239
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