IN THE CASE OF:	  

		BOARD DATE:	  27 September 2012

		DOCKET NUMBER:  AR20120006990 


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 her records to show advancement on the Retired List to the rank/grade of captain (CPT)/O-3.

2.  The applicant states she believes the record to be unjust because she retired after several months of discussion about her correct grade.  She adds:

* she was told by an official of the Army Grade Determination Review Board (AGDRB) that her dual status does not qualify her for advancement
* this contradicts what she was told in 2005/2006 as she retired from the Army
* she was in a dual status, serving in the Regular Army as an enlisted Soldier while holding a Reserve commission
* she communicated back and forth with a Retirement Services Officer (RSO) and the U.S. Army Human Resources Command (HRC), but she was told conflicting information
* she served as an enlisted Soldier for 23 years and 10 months and retired as a command sergeant major (CSM) on 28 February 2006
* she also served as a Reserve commissioned officer since 1988 and attained the rank/grade of CPT/O-3
* the email traffic as well as the officer evaluation reports (OER) clearly support her contention for advancement

3.  The applicant provides:

* letter from the AGDRB
* email with the RSO and HRC
* DA Form 2339 (Application for Voluntary Retirement)
* Enlisted Record Brief
* DA Form 4187 (Personnel Action) and retirement approval memorandum
* appointment memorandum and oath of office
* promotion memorandum
* DA Forms 1059 (Service School Academic Evaluation Report) and diploma
* multiple OER's

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show she enlisted in the U.S. Army Reserve (USAR) under the Delayed Entry Program (DEP) on 1 February 1982.  She was discharged from the DEP on 5 April 1982 and subsequently enlisted in the Regular Army on 6 April 1982.  She held military occupational specialties 92G (Food Service Specialist) and 96B (Intelligence Analyst).

2.  During her enlisted service and while holding the grade of E-4 in the Regular Army, she attended and successfully completed Officer Candidate School from 6 April to 19 May 1984.

3.  Also during her enlisted service and while holding the grade of E-6 in the Regular Army, she was appointed as a Reserve commissioned officer in the rank of second lieutenant and executed an oath of office on 12 April 1988.  She was promoted to first lieutenant in the USAR on 11 April 1991 and to CPT on 10 April 1995.

4.  As a Reserve commissioned officer, her branch was that of quartermaster but she mainly served in military intelligence positions within the Intelligence and Security Command and mainly at Fort Huachuca, AZ.  She received multiple OER's confirming her duties as a Reserve commissioned officer.

5.  Meanwhile, she continued to serve in the Regular Army through multiple reenlistments and/or extensions in a variety of staff and leadership positions and she attained the rank/grade of CSM/E-9.

6.  On 13 April 2005, she submitted a request for voluntary retirement which was endorsed by her chain of command and ultimately approved by the appropriate authority.  Her DA Form 2339 shows in:

* item 5 (Current Grade, Pay Grade, and MOS) – "CSM, E-9 (2002/01/01), OOZ5O"
* item 6 (Highest Grade Served on Active Duty and Branch of Service) –  "E-9 U.S. Army"
* item 11 (Request Transfer to Retired Reserve in the Following Status) – "Enlisted"

7.  On 13 June 2005, the U.S. Army Intelligence Center and Fort Huachuca, Fort Huachuca, AZ, published Orders 164-0102 ordering her release from active duty effective 28 February 2006 and placement on the Retired List in the rank of CSM effective 1 March 2006 in accordance with Title 10, U.S. Code (USC), section 3914.

8.  Meanwhile, she communicated with her installation RSO and HRC officials regarding her retired grade.  In some email she was told she had the option to choose between her enlisted and commissioned officer retired grade while in other email she was informed she was not eligible to retire in the commissioned officer grade.

9.  She was honorably retired on 28 February 2006 and she was placed on the Retired List in the rank/grade of CSM/E-9 on 1 March 2006.  Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she completed 23 years, 10 months, and 25 days of creditable active service.

10.  On 12 January 2012, she petitioned the AGDRB for advancement on the Retired List to the rank of CPT in accordance with Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 12-6.

11.  On 7 March 2012, the AGDRB notified her that the AGDRB does not have the authority to advance anyone on the Retired List under the regulation she cited.  The AGDRB further informed her that the AGDRB may advance qualifying people on the Retired List only under the provisions of Title 10, USC, section 3964, which requires that the higher grade was satisfactorily served on active duty.  Dual status does not qualify her for advancement.

12.  Title 10, USC, chapter 367, governs retirement for length of service.  Section 3911(a) states the Secretary of the Army may, upon the officer's request, retire a Regular or Reserve commissioned officer who has at least 20 years of service, at least 10 years of which have been active service as a commissioned officer.

13.  Title 10, USC, chapter 369, governs retired grades.  Section 3961 states that the retired grade of a Regular commissioned officer who retires other than for physical disability and the retired grade of a Reserve commissioned officer of the Army who retires other than for physical disability or for non-Regular service under chapter 1223 of this title is determined under section 1370 of this title.

14.  Title 10, USC, section 1370(a)(1) (Rule for Retirement in Highest Grade Held Satisfactorily), states that 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 or she served on active duty satisfactorily for not less than 6 months, as determined by the Secretary of the Military Department concerned.

15.  Title 10, USC, section 1370(b) (Retirement in Next Lower Grade), states an officer whose length of service in the highest grade he or she 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 for not less than 6 months, as determined by the Secretary of the Military Department concerned.

16.  Title 10, USC, section 3964 (Higher Grade after 30 Years of Service:  Warrant Officers and Enlisted Members) states in:

	a.  Each retired member of the Army covered by subsection (b) who is retired with less than 30 years of active service is entitled, when his or her active service plus his or her service on the Retired List totals 30 years, to be advanced on the Retired List to the highest grade in which he or she served on active duty satisfactorily (or, in the case of a member of the National Guard, in which he or she served on full-time duty satisfactorily), as determined by the Secretary of the Army.

	b.  This section applies to (1) warrant officers of the Army, (2) enlisted members of the Regular Army, and (3) Reserve enlisted members of the Army who, at the time of retirement, are serving on active duty (or, in the case of members of the National Guard, on Full-Time National Guard Duty).

17.  Title 10, USC, section 101(d), defines "active duty" as full-time duty in the active military service of the United States.  Such term includes full-time training duty, annual training duty, and attendance at a school designated as a service school while in the active military service.

18.  Army Regulation 600-39 (Dual Component Personnel Management Program) prescribes policies governing the Army's Dual Component Personnel Management Program.  This program allows the Department of the Army to quickly meet mobilization requirements through procurement of trained commissioned and warrant officers from enlisted and warrant ranks of the Regular Army.  The concept of the program is to quickly meet the mobilization needs for officers through procurement of trained commissioned and warrant officers.  Current active duty members are ready assets during times of rapid expansion of the Active Army.  They can be mobilized to assume greater responsibilities quickly.  Warrant officers or enlisted members may retire voluntarily in a commissioned officer status provided they have completed 10 years of active commissioned service in their overall total of 20 years active Federal service and hold a USAR commission at the time of retirement.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends she should be advanced on the Retired List to the rank/grade of CPT/O-3.

2.  The applicant served in a dual status as an enlisted Soldier in the Regular Army and as a Reserve commissioned officer in the USAR.  She retired in the rank/grade of CSM/E-9 and was placed on the Retired List in that rank/grade.  Her DD Form 214 correctly lists her rank/grade at the time of her retirement as CSM/E-9.

3.  There is no evidence the applicant served on active duty satisfactorily for at least 6 months in the rank/grade of CPT/O-3.  While the evidence of record shows she held a Reserve commission since 1988 and continued to do so until her retirement, she did so in a Reserve status.  This duty did not meet the definition of "active duty" as provided by Title 10, USC.  As such, she is not entitled to be advanced on the Retired List to CPT/O-3.

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)                                         AR20120006990



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ABCMR Record of Proceedings (cont)                                         AR20120006990



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