IN THE CASE OF:	  

		BOARD DATE:	  10 June 2014

		DOCKET NUMBER:  AR20130016533 


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 reconsideration of an earlier request to be advanced on the Retired List to the rank/grade of captain (CPT)/O-3.

2.  The applicant states:

	a.  there is no evidence she ever performed any duties as a Reserve officer on active duty from 1988 to 2006; however, she provides evidence that she performed duties and training as a Reserve officer in the Active Army.  

	b.  she had an extremely difficult task from 1988 to 2006 in obtaining her Officer Evaluation Reports (OER).  She had been assigned to the Foreign Materiel Intelligence Battalion for 41 months and was unable to obtain OERs due to administrative oversight.  

	c.  prior to her reenlisting two Soldiers, she had to provide a copy of Army Regulation 601-280 (Army Retention Program) so she could reenlist the two Soldiers as a Reserve officer.  From that point in her career, she maintained a folder which held Army Regulation 600-39 (Dual Component Personnel Management Program), her OERs, emails, contact persons and telephone numbers.

	d.  the next 20 months (1995/1996) she encountered approximately 4-5 Reserve and National Guard units while completing her two week annual training duty.  She would take it upon herself and visit the units and explain the situation that she needed to do her two weeks annual training duty and they would assist her in locating a unit for that purpose.  She continued to submit her OERs and each one was accepted.  No one ever told her that she needed documentation or to report her annual training time anywhere or to anyone.

	e.  she had little assistance from 1988 to 2006 in regard to her dual status OER situation.

	f.  her tour in Japan (1996/1997) allowed her to obtain her OERs and reenlist, extend, and promote Soldiers.  Prior to assuming her first sergeant position in 1999, she had 6 months to do her two-week annual training with the Reserves.  Within those 24 months, she was only able to complete one of her two-week annual training duties.  After completion of that position, she had surgery and waited for her attendance at the Sergeants Major Academy in the latter part of 1999.  She did not perform any duties as a Reserve officer at the academy.

	g.  her tour in Korea as a Battalion Command Sergeant Major of the 102nd Military Intelligence Battalion allowed her opportunities to do her annual training as a Reserve officer and promote, extend, and reenlist Soldiers.

	h.  when she arrived back at Fort Huachuca, AZ she had the opportunity to fulfill two of her two-week annual training duties. 

3.  The applicant provides:

* Letter, dated 10 October 2012, from the Board for Correction of Military Records
* OER documents
* Excerpts from Army Regulation 601-280 and Army Regulation 600-39
* Another Soldier's Honorable Discharge Certificate which she signed
* Another Soldier's Certificate of Retirement which she signed
* Photographs of Soldiers getting promoted
* Letters of support 

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120006990, on 
27 September 2012.

2.  She provides the following letters of support:

	a.  a retired master sergeant states he was stationed with the applicant from 1989 to 1992.  At that time she was a lieutenant in the Reserves and a staff sergeant on active duty.  The applicant promoted her.

	b.  a retired first sergeant states he was stationed with the applicant from 1992 to 1994.  During their in-processing the applicant informed him that she was a captain in the Reserves, thus she would receive an OER and a Noncommissioned Officer Evaluation Report.  She performed her two-week training obligation in the summer months.

	c.  a fellow Soldier states he was stationed with the applicant from 2003 to 2004.  At that time she was serving both as a CPT in the Army Reserves and the Battalion Command Sergeant Major while on active duty.

	d.  a colonel states he was stationed with the applicant from 2002 to 2004.  She served as the Battalion Command Sergeant Major, but she performed duties as a CPT in the U.S. Army Reserve (USAR).  He distinctly recalls reviewing the required OERs that the Battalion Commander wrote for the Reserve duty she performed.

	e.  a retired colonel states the applicant served simultaneously as a CPT in the USAR and performed over two weeks of annual drill duty as a CPT while assigned to his command in Korea from 2002 to 2004.  He realizes this is an unusual situation as the personnel system does not come across these simultaneous appointments regularly.  The applicant's veracity is unimpeachable.   

3.  These letters are new evidence that will be considered by the Board.

4.  She enlisted in the USAR under the Delayed Entry Program (DEP) on 1 February 1982.  She was discharged from the DEP on 5 April 1982 and enlisted in the Regular Army on 6 April 1982.  She held military occupational specialties 92G (Food Service Specialist) and 96B (Intelligence Analyst).

5.  She was appointed as a Reserve commissioned officer in the rank of second lieutenant on 12 April 1988.  She was promoted to first lieutenant in the USAR on 11 April 1991 and to CPT on 10 April 1995.

6.  As a Reserve commissioned officer, her branch was that of quartermaster but she mainly served in military intelligence positions within the Intelligence and Security Command and mainly at Fort Huachuca, AZ.  She received multiple OERs confirming her duties as a dual-component Reserve commissioned officer.

7.  Meanwhile, she continued to serve in the Regular Army through multiple reenlistments and/or extensions in a variety of staff and leadership positions and she attained the rank/grade of CSM/E-9.

8.  On 13 April 2005, she submitted a request for voluntary retirement which was endorsed by her chain of command and ultimately approved by the appropriate authority.  Her DA Form 2339 (Application for Voluntary Retirement) shows in:

* item 5 (Current Grade, Pay Grade, and MOS) – "CSM, E-9 (2002/01/01), 00Z5O"
* item 6 (Highest Grade Served on Active Duty and Branch of Service) –  "E-9 U.S. Army"
* item 11 (Request Transfer to Retired Reserve in the Following Status) – "Enlisted"

9.  On 13 June 2005, orders show she was released from active duty effective 28 February 2006 and placed on the Retired List in the rank of CSM effective 1 March 2006 in accordance with Title 10, U.S. Code (USC), section 3914.

10.  She was honorably retired on 28 February 2006 and she was placed on the Retired List in the rank/grade of CSM/E-9 on 1 March 2006.  Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she completed 23 years, 10 months, and 25 days of creditable active service.

11.  On 12 January 2012, she petitioned the Army Grade Determination Review Board (AGDRB) for advancement on the Retired List to the rank of CPT.

12.  On 7 March 2012, the AGDRB notified her that the AGDRB does not have the authority to advance anyone on the Retired List under the regulation she cited.  The AGDRB further informed her that the AGDRB may advance qualifying people on the Retired List only under the provisions of Title 10, USC, section 3964, which requires that the higher grade was satisfactorily served on active duty.  Dual status does not qualify her for advancement.

13.  Title 10, USC, 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.



14.  Title 10, USC, chapter 369, governs retired grades.  Section 3961 states that 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.

15.  Title 10, USC, 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.

16.  Title 10, USC, 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 served on active duty satisfactorily for not less than 6 months, as determined by the Secretary of the Military Department concerned.

17.  Title 10, USC, section 3964 (Higher Grade after 30 Years of Service:  Warrant Officers and Enlisted Members) states in:

	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).

18.  Title 10, USC, 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.

19.  Army Regulation 600-39 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 she should be advanced on the Retired List to the rank/grade of CPT/O-3.

2.  The applicant served in a dual status as an enlisted Soldier in the Regular Army and as a Reserve commissioned officer in the USAR.  She retired in the rank/grade of CSM/E-9 and was placed on the Retired List in that rank/grade.  

3.  Although the evidence shows she held a Reserve commission from 1988 to 2006, this duty was in a Reserve status, not while on active duty.

4.  The letters of support provided by the applicant were carefully considered.   However, there is no evidence she served on active duty satisfactorily for at least 6 months in the rank/grade of CPT/O-3 or that she completed 10 years of active commissioned service in her overall total of active federal service.  Regrettably, she is not entitled to be advanced on the Retired List to CPT/O-3.

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 to amend the decision of the ABCMR set forth in Docket Number AR20120006990, dated 27 September 2012.




      _______ _   _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)                                         AR20130016533





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ABCMR Record of Proceedings (cont)                                         AR20130016533



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