IN THE CASE OF:
BOARD DATE: 17 October 2013
DOCKET NUMBER: AR20130002454
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, retired pay as a major.
2. The applicant states that while he served on active duty as an enlisted man he was a dual status U.S. Army Reserve (USAR) officer and he was promoted to major. Recently, when he inquired about being paid as a major he was referred to this Board.
3. The applicant provides:
* memorandum issued by the U.S. Total Army Personnel Command (TAPC), St. Louis, MO, subject: Promotion as a Reserve Commissioned Officer of the Army Under Title 10, U.S. Code, dated 4 August 1993
* letter issued by the Army Review Boards Agency (ARBA), Military Review Boards (MRB), pertaining to the applicant, subject: 30-Year Grade Determination, dated 12 December 2005
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 30 September 1992
* his email to askhrc@us.army.mil, dated 4 January 2013
* his email to askhrc@us.army.mil, dated 14 January 2013
* Orders S130-21, issued by TAPC, dated 13 July 1994
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. After having had prior Regular Army enlisted service from January 1978 to July 1981, the applicant was commissioned as a USAR officer and entered active duty on 10 July 1981. On 30 September 1992, he was separated from active duty as a captain due to a reduction in strength. On 1 October 1992, he enlisted in the Regular Army. He retained his commission as a dual-status Soldier.
3. A TAPC memorandum, dated 4 August 1993 announced the applicant's promotion to major with an effective date of 9 April 1993. It noted he was then serving on active duty as a staff sergeant.
4. Orders S130-21, dated 15 July 1994, ordered his retirement from active status and discharge from an enlisted status. It established his retired rank as a major and his rank for pay purposes as a captain with prior enlisted service.
5. There is no available evidence the applicant ever served on active duty as a major.
6. On 12 December 2005, ARBA, MRB convened the Army Grade Determination Board to consider the applicant's 30-year pay grade under Docket Number AR20050009865. It noted the applicant had served in an enlisted status in pay grade E-6 and determined that his retired pay grade should be
O-3E.
7. Title 10, U.S. Code, section 1370 (Commissioned officers: general rule; exceptions) provides in part rules for retirement in highest grade held satisfactorily. It states 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 be retired in the highest grade in which
he/she served on active duty satisfactorily, as determined by the Secretary of the military department concerned, for not less than 6 months.
DISCUSSION AND CONCLUSIONS:
There is no evidence the applicant served on active duty as a major and Title 10, U.S. Code, section 1370 precludes him from being paid as a major. Therefore, in view of the foregoing, there is an insufficient evidentiary 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) AR20130002454
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ABCMR Record of Proceedings (cont) AR20130002454
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