IN THE CASE OF:
BOARD DATE: 14 May 2014
DOCKET NUMBER: AR20130015526
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 his rank in the personnel system be corrected to major (MAJ)/pay grade O-4, Retired, U.S. Army Reserve (USAR), and that he receive any appropriate back pay.
2. The applicant states "per Orders 32-10, 15 February 1977" he was promoted to MAJ/O4 (USAR), effective 15 February 1977. Currently the personnel system and the Defense Enrollment Eligibility Reporting System (DEERS) show his rank/pay grade as captain (CPT)/O-3 (USAR). He would like the records corrected and any authorized back retirement pay distributed as appropriate.
3. The applicant provides:
* Headquarters, Combined Arms Center and Fort Leavenworth, Fort Leavenworth, KS Orders 32-10, dated 15 February 1977
* DD Form 214 (Report of Separation from Active Duty) with an effective date of 31 May 1977
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. He previously served in the Army National Guard and the USAR in an enlisted status. On 10 May 1957, he enlisted in the Regular Army (RA) and served continuously until he was discharged on 14 September 1965 to accept a commission.
3. On 15 September 1965, he was commissioned in the USAR and entered extended active duty. He was promoted to CPT on 15 January 1968. On
5 September 1974, he was released from active duty and transferred to the USAR Control Group (Reinforcement) due to reduction in authorized strength.
4. On 6 September 1974, he enlisted in the RA and served continuously until his retirement. He was promoted to sergeant first class (SFC)/pay grade E-7 on
1 December 1974.
5. On 15 February 1977, he was promoted to MAJ in the USAR.
6. The applicant provided Headquarters, Combined Arms Center and Fort Leavenworth, Fort Leavenworth, KS Orders 32-10, dated 15 February 1977. These orders amended so much of U.S. Army Headquarters, Combined Arms Center and Fort Leavenworth, Fort Leavenworth, KS Orders 121-5 pertaining to the applicant.
a. The orders were amended as follows:
(1) As reads: Additional instructions: Transferred to Retired Reserve as CPT (USAR).
(2) How changed: Additional instructions: Transferred to Retired Reserve as MAJ (USAR). Highest grade held on active duty was CPT (USAR).
b. A copy of these orders were not contained in his Military Personnel Records Jacket.
7. On 31 May 1977, he was retired and placed on the Retired List the following day. He had completed a total of 20 years, 7 months, and 26 days of active service. Headquarters, Combined Arms Center and Fort Leavenworth, Fort Leavenworth, KS Orders 53-21, dated 17 March 1977, show his effective date of retirement as 31 May 1977. The orders also show:
* Retired Grade: SFC E-7
* Transferred to Retired Reserve as MAJ (USAR)
* Highest grade held on active duty was CPT (USAR)
8. A letter, dated 11 November 1986, from the Chief, Retirement Services, U.S. Army Reserve Personnel Center, St. Louis, MO (now known as the U.S. Army Human Resources Command) notified him he had been advanced on the Retired List effective 5 October 1986, to the grade of CPT (O-3), the highest active duty grade he satisfactorily held.
9. Title 10 of the U.S. Code, section 3964, provides the legal authority for advancement on the Retired List. It states retired Soldiers are entitled, when their active service plus service on the Retired List totals 30 years, to be advanced on the Retired List to the highest grade they held and in which they satisfactorily served while on active duty as determined by the Secretary of the service concerned.
DISCUSSION AND CONCLUSIONS:
1. The statute provides that a Soldier may be advanced on the Retired List to the highest grade he satisfactorily held while on active duty. There is no evidence the applicant served on active duty in the rank of MAJ. Therefore, he is not entitled to advancement to MAJ on the Retired List.
2. He was advanced to the CPT on the Retired List effective 5 October 1986. This was the highest active duty grade he satisfactorily held. Therefore, his rank of CPT as shown in the personnel system and DEERS is correct.
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) AR20130015526
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ABCMR Record of Proceedings (cont) AR20130015526
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