IN THE CASE OF:	 

		BOARD DATE:	    16 January 2014

		DOCKET NUMBER:  AR20130008580 


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 her military records to show at the time of retirement her rank/grade was colonel (COL)/O-6 vice lieutenant colonel (LTC)/O5.

2.  She states:

* in the fall of 1997 she was informed that she was selected for promotion to COL
* in January 1999 she requested to retire on 1 September 1999
* she received retirement orders in June 1999
* on 1 July 1999, she was promoted to COL
* she was on terminal leave from 1 to 31 August 1999
* she officially retired on 1 September 1999

3.  She provides:

* Self-authored statement
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Promotion ceremony photographs
* Armed Forces of the United States Identification Card
* Certificate of Retirement
* Congratulatory letter
* Promotion certificate
* 
Orders

* 93-015, dated 11 June 1993
* S84-1, dated 11 June 1999
* 162-004, dated 11 June 1999
* 193-002, dated 12 July 1999

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 was appointed in the U.S. Army Reserve (USAR) as a first lieutenant in the Medical Corps on 7 July 1981.  She was promoted to LTC effective 1 July 1993.

3.  U.S. Total Army Personnel Command (now the U.S. Army Human Resources Command (HRC)):

   a. Orders Number 162-004, date 11 June 1999, show she was promoted to COL effective 1 July 1999.  Her certificate of promotion confirms her promotion date.

   b.  Orders Number S-84-1, dated 11 June 1999, show her rank in the standard name line as LTC.  It also shows she was released from her assignment effective 31 August 1999 and placed on the retirement list.  Her retired grade/date of rank was listed as LTC/1 July 1993 with a date placed on the retirement list of 1 September 1999.

4.  Her DD Form 214 shows in:

* Item 4a (Grade, Rate or Rank) LTC
* Item 4b (Pay Grade) O5
* Item 12h (Effective Date of Pay Grade) 1 July 1993
* Item 18 (Remarks) "Retired List Rank:  Lieutenant Colonel"

5.  Her record is void of any evidence that shows she applied for and/or was granted a waiver of the 3 years time in grade requirement to retire in the rank of COL.

6.  In the processing of this case, on 26 June 2013, an advisory opinion was obtained from the Chief, Officer Promotions, HRC.  The opinion recommended disapproval of the applicant's request to be retired in the rank/grade of COL/O-6. This official stated the impact of promotions on service obligations and retirement is a specific period of active duty an officer must serve before being eligible for voluntary separation or retirement.  He added to retire or separate in the next higher grade, the officer must serve satisfactorily in the new grade for 3 years as a COL per regulation.

7.  The advisory opinion was forwarded to the applicant and on 16 July 2013, she responded to HRC's recommendation to deny her request.  She stated that her only intent was to be able to reflect in her military record that the highest rank she attained was COL which she worked so hard to achieve.  She stated it was never her intent to ask for financial benefits such as retirement pay as a COL or any other benefits that come with the rank.

8.  Army Regulation 600-8-29 (Officer Promotions) provides guidance on the officer promotion system.  Paragraph 1-18 states the active duty service obligation (ADSO) is a specific period of active duty an officer must serve before being eligible for voluntary separation or retirement.  Officers accepting a promotion to any grade other than CW3, CW4, and CW5 do not incur an additional service obligation; however, to retire or separate in the next higher grade, the officer must serve satisfactorily in the new grade for a period of
3 years for COL. 

9.  Army Regulation 350-100 (Officer ADSO) establishes policies and procedures for the receipt, computation, and notice of ADSOs for all commissioned officers and warrant officers serving on the active duty lists.  Paragraph 2-5 states that a commissioned officer who accepts a promotion does not incur an ADSO.  However, an officer in the grade of lieutenant colonel or colonel must serve in that grade for not less than 3 years from the date of promotion to voluntarily retire in that grade unless waived under some other provision of law.

10.  Title 10, U.S. Code, section 1370(d) specifies that in order to be eligible for voluntary retirement, officers in the rank/grade of LTC/O-5 and above must have served in an active status in that grade for not less than three years.  The Secretary of Defense may authorize the Secretary of a military department to reduce such period to a period not less than two years.  Officers mandatorily removed from an active status by law may be retired in the higher grade if they held the grade satisfactorily in an active status for a minimum of six (6) months.

11.  Army Regulation 635-5 (Separation Documents) establishes standardized policy for preparing and distributing the DD Form 214.  This regulation states that the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge.  Paragraph 2-4 requires the preparer to enter the active duty grade or rank and pay grade at the time of separation from the Officer Record Brief in item 4a (Grade, Rate, or Rank) and item 4b (Pay Grade) and date of pay grade in item 12h (Effective Date of Pay Grade).

DISCUSSION AND CONCLUSIONS:

1.  Notwithstanding HRC's recommendation, the applicant's certificate of promotion as well as her promotion orders verify that she was promoted to COL effective 1 July 1999.  

2.  Additionally, as specified in the cited regulations a commissioned officer who accepts a promotion does not incur an ADSO but must have served for a period of 3 years to be eligible to retire in that grade.  Since she did not serve in the grade of COL for 3 years in an active status, she is not entitled to the benefits associated with that promotion.  Therefore, the comment listed in her retirement orders and the remarks sections of her DD Form 214 in regard to her retirement rank of LTC are correct as constituted.  However, she is entitled to correction of her DD Form 214 to show her rank/grade at the time of retirement was COL/O6 with a date of rank of 1 July 1999.

BOARD VOTE:

___X____  ___X____  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is 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:

   a.  deleting from items 4a/4b and 12h of her DD Form 214 LTC/O5 and    "1993  07  01," respectively; and

   b.  adding to items 4a/4b and 12h of her DD Form 214 COL/O6 and        "1999  07  01; respectively.




      __________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)                                         AR20130008580



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ABCMR Record of Proceedings (cont)                                         AR20130008580



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