BOARD DATE: 10 July 2014
DOCKET NUMBER: AR20130016155
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 that his records be corrected to show that he was placed on the Retired List in the rank and pay grade of lieutenant colonel/O-5.
2. The applicant states that there existed a glaring discrepancy between the Active Component (AC) and Reserve Component (RC) regulations regarding time in grade (TIG) requirements for retirement at the rank of LTC. The AC regulation states 3 years TIG and the RC regulation states 6 months and he was unable to get a ruling from his commander as to which regulation applied in his case. He also states that he was not offered a compassionate reassignment by his assignment manager so because of his wifes bipolar mood swings, he had no option but to retire.
3. The applicant provides a list of enclosures with his application on page five and six of his application.
COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:
1. Counsel requests that the applicant be placed on the Retired List in the rank of LTC as a matter of equity.
2. Counsel states, in effect, that the applicant was serving in the rank of LTC when he retired and because of extenuating circumstances, he had to retire before achieving the required TIG to retire as an LTC. However, the applicant has been employed by the Army Cadet Command as a Junior Reserve Officers Training Corps (JROTC) instructor and given his continued contributions to the Army he should be granted constructive credit and allowed to retire in the rank of LTC.
3. Counsel provides a three-page supplemental explaining the applicants circumstances.
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 a U.S. Army Reserve major serving on active duty in the Active Guard Reserve (AGR) Program when he was promoted to the rank of LTC on 13 January 2003.
3. On 31 December 2004, he was honorably retired by reason of length of service in the rank of major. He was placed on the Retired List in the rank of major effective 1 January 2005. He had served 21 years, 7 months and 19 days of active service. His retirement orders specified that he was retired in the rank of major because he had not served 3 years TIG as a LTC.
4. A review of his official records failed to show any evidence of the applicant requesting a compassionate reassignment prior to his retirement.
5. In the processing of this case a staff advisory opinion was obtained from the U.S. Army Human Resources Command at Fort Knox, Kentucky which opines, in effect, that the required TIG for retirement in the rank of LTC is 3 years TIG and the applicant served only 1 year, 10 months and 26 days TIG before he retired and thus is not eligible to retire in the rank of LTC. The advisory opinion was provided to the applicant for comment and to date no response has been received by the staff of the Board.
6. Title 10, U.S. Code, Section 1370(2)(a) provides that eligibility for retirement in a grade above major requires service in that grade for not less than 3 years and that the Secretary of Defense may authorize the Secretary of a military department to reduce the retirement requirement to 2 years.
DISCUSSION AND CONCLUSIONS:
1. The applicants contention that he should be placed on the Retired List in the rank of LTC has been noted.
2. The applicant did not serve the required minimum of 3 years TIG or even the waivable 2 years TIG requirement in order to be retired in the rank of LTC.
3. While it is indeed unfortunate that the applicant had to retire before reaching his 3 years TIG, he did not complete the requisite TIG to retire in the rank of LTC and to grant his request would afford him a benefit not afforded to others in similar circumstances.
4. Accordingly, there is no basis to grant his request for placement on the Retired List in the rank of LTC.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
__X______ __X______ _X____ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. 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.
2. The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Global War on Terrorism. The applicant and all Americans should be justifiably proud of his service in arms.
_______ _ 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) AR20130016155
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