IN THE CASE OF:
BOARD DATE: 12 June 2012
DOCKET NUMBER: AR20110023706
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 amendment to his DD Form 363A (Certificate of Retirement) to show his retired rank as lieutenant colonel vice major.
2. He states he retired from active duty in the rank of major; however, his name was placed on the retired list in the rank of lieutenant colonel.
3. He provides:
* retirement orders
* a DD Form 214 (Report of Separation from Active Duty)
* his Certificate of Retirement
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. His record shows he was appointed a second lieutenant in the Army National Guard (ARNG) on 13 September 1951. He entered active duty on 10 July 1956 to serve in the Army of the United States (AUS).
3. The applicant was appointed to the rank of major in the U.S. Army Reserve (USAR) on 31 August 1965.
4. His record also shows he was appointed as a major in the AUS with a date of rank of 13 June 1966.
5. A letter from the USAR Components Personnel and Administration Center, St. Louis, MO, dated 8 September 1972, shows he was promoted as a Reserve commissioned officer of the Army, in the rank of lieutenant colonel effective
20 September 1972.
6. The same letter states:
Your records reflect that you are serving in an AUS grade lower than the USAR grade to which promoted. If you have not yet received an AUS appointment, upon receipt of this letter you are considered to have accepted an appointment in the AUS grade in which currently serving.
7. His record contains a letter from the U.S. Army Military Personnel Center, Alexandria, VA, dated 2 May 1973. This document shows a Department of the Army promotion selection board convened on 5 September 1972, to consider officers for temporary, AUS promotion to lieutenant colonel, under the provisions of Army Regulation 624-100 (Promotion of Officers on Active Duty). His record was considered; however, he was not among those found fully qualified.
8. The Department of the Army letter also showed that Army policy required the release from active duty of a Reserve officer who had twice failed to be found fully qualified for temporary promotion to the next higher grade. However, since he had completed over 18 years of active federal service, he would be retained on active duty until 30 June 1975. He would be eligible to retire on 1 June 1975 or 1 July 1975, whichever he preferred.
9. The applicant provided a copy of Letter Orders Number S4-353, dated
24 April 1975 and a memorandum, dated 31 May 1975. These documents show he was released from active duty service on 31 May 1975 in the rank of major and was placed on the AUS retired list on 1 June 1975 in the retired grade/rank of lieutenant colonel.
10. His DD Form 214 shows he retired from active duty on 31 May 1975 in the rank of major and transferred to the USAR Control Group (Retired). He had completed 20 years and 12 days of total active service and 8 years, 3 months, and 21 days of prior inactive service. His component was listed as USAR.
11. The applicant was issued a DD Form 363A which shows he was retired from the U.S. Army on 31 May 1975, in the rank of major.
12. Army Regulation 635-5 (Separation Documents) provides for the completion of the DD Form 363A. It states, in part, to enter the grade (rank) and date of retirement in the appropriate spaces.
13. Title 10, U. S. Code, section 3961(b) states that, unless entitled to a higher retired grade under some other provision of law, a Regular or Reserve of the Army not covered by section 3961(a) (which discusses commissioned officers) who retires other than for physical disability retires in the regular or reserve grade that he holds on the date of his retirement.
DISCUSSION AND CONCLUSIONS:
1. The applicant's retirement order specifically stated that he was to be placed on the retired list on 1 June 1975 in the retired grade of lieutenant colonel.
2. Army Regulation 635-5 states to enter the grade and date of retirement in the appropriate spaces on the DD Form 363A.
3. It appears that a misinterpretation of the regulation took place when preparing his certificate, in which and his active duty rank (major) rather than his retired rank was incorrectly listed on the DD Form 363A. Therefore, it would be in the interest of equity to reissue him a Certificate of Retirement that reflects his rank as lieutenant colonel.
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 reissuing him a DD Form 363A which lists his rank as "lieutenant colonel."
_______ _ _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) AR20110023706
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ABCMR Record of Proceedings (cont) AR20110023706
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