IN THE CASE OF:	  

		BOARD DATE:  29 November 2012

		DOCKET NUMBER:  AR20120009125 


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 dual component status so he can be reissued a military identification (ID) card showing his rank as major (MAJ).

2.  The applicant states that while serving on active duty as a sergeant first class (SFC) he was appointed as a captain (CPT) in the U.S. Army Reserve (USAR).  He was promoted to MAJ in the USAR on 16 November 1987.  He was issued an ID card that he carried until February 2011 when it was lost.  He requests issuance of a new ID card.

3.  The applicant provides:

* DD Form 149 (Application for Correction of Military Records), dated 
27 July 2012
* DA Form 71 (Oath of Office – Military Personnel), dated 17 November 1980
* letter of appointment to CPT in the USAR
* letter of promotion to MAJ in the USAR

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 is a retired Regular Army first sergeant (1SG).

3.  On 5 November 1980, while serving on active duty as an SFC, he was appointed as a CPT in the USAR.

4.  Orders 228-20, issued by Headquarters, Fifth U.S. Army, dated 24 November 1980, show he accepted an appointment in the USAR and he was assigned to the USAR Control Group (Dual Components), St. Louis, MO, effective
17 November 1980.  An entry in the Additional Instructions section states "This action does not affect current active duty status."

5.  A memorandum issued by the U.S. Army Reserve Personnel Center,
St. Louis, subject:  Promotion as a Reserve Commissioned Officer of the Army under Title 10 of the U.S. Code, dated 16 September 1987, shows the applicant was promoted to MAJ in the USAR effective 16 November 1987.  This memorandum further shows that at the time he was serving on active duty as a master sergeant.

6.  On 31 October 1989, the applicant was retired for length of service.  The
DD Form 214 (Certificate of Release or Discharge from Active Duty) shows his rank/grade as 1SG.  Item 9 (Command to Which Transferred) shows he was reassigned to the USAR Control Group (Retired).

7.  Title 10, U.S. Code, 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.

8.  Title 10, U.S. Code, chapter 369, governs retired grades.  Section 3961 states 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.

9.  Title 10, U.S. Code, 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.

10.  Title 10, U.S. Code, 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 or she served on active duty satisfactorily for not less than 6 months, as determined by the Secretary of the Military Department concerned.

11.  Title 10, U.S. Code, section 3964 (Higher Grade after 30 Years of Service:  Warrant Officers and Enlisted Members) states:

	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).

12.  Title 10, U.S. Code, 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.

13.  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 his records should be corrected to show his dual component status so he can be issued a military ID card showing his rank as MAJ.

2.  The applicant served in a dual component status as an enlisted Soldier in the Regular Army and as a Reserve commissioned officer in the USAR.  He retired in the rank of 1SG and he was placed on the Retired List in that rank.  His DD Form 214 correctly lists his rank at the time of his retirement as 1SG.

3.  His records do not show he performed any period of active duty as a commissioned officer.  His dual component status terminated when he retired.

4.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20120009979



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ABCMR Record of Proceedings (cont)                                         AR20120009125



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