IN THE CASE OF:
BOARD DATE: 16 December 2014
DOCKET NUMBER: AR20140002856
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 military records be corrected to reflect the highest grade he held.
2. The applicant states that while he was on active duty he was categorized as a duel-component Soldier. He served 9 years as an enlisted Soldier and 11 years as a commissioned officer and was promoted to the rank of lieutenant colonel (LTC) in the U.S. Army Reserve (USAR).
3. The applicant provides copies of his Retired Identification Card, DD Form 214 (Certificate of Release or Discharge from Active Duty), Army Times clippings, retirement orders, and an officer evaluation report.
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 enlisted in the Regular Army on 3 February 1972 for a period of 3 years. He served until he was honorably discharged in the pay grade of E-5 on 12 March 1973 to accept a commission. He had served 1 year, 1 month, and 20 days of active service.
3. On 13 March 1973, he was commissioned as a USAR second lieutenant with a concurrent call to active duty. He continued to serve and was promoted to the rank of captain (CPT) on 13 March 1977.
4. On 1 January 1985, he was honorably released from active duty due to failure of selection for permanent promotion. He had served 11 years, 9 months, and 9 days of active service as a commissioned officer. He was transferred to the USAR Control Group (Reinforcement).
5. The applicant then enlisted in the Regular Army in the pay grade of E-5 on 2 January 1985. He was promoted to the pay grade of E-6 on 1 June 1985 and served until he was honorably retired in the pay grade of E-6 on 31 March 1992 due to length of service. He was paid at the rank of CPT and placed on the Retired List in the rank of LTC.
6. A review of his official records failed to show that the applicant served on active duty above the rank of CPT.
7. The DA Form 3713 (Data for Retired Pay) contained in his record indicates that the applicants retired grade and pay as a captain was determined in accordance with Section 1370, Title 10, U.S. Code (10 USC 1370) and that he was serving on active duty in the pay grade of E-6.
8. On 2 April 1992, orders were published by the Total Army Personnel Command (TAPC) that directed his retirement effective 31 March 1992 and placement on the Retired List in the rank of LTC.
9. 10 USC 1370 provides the legal authority for retirement in the highest grade held satisfactorily for commissioned officers. It states, in pertinent part, that a commissioned officer who retires under any provision of law shall be retired in the highest grade in which they served on active duty satisfactorily, as determined by the Secretary of the military department concerned, for not less than six months.
10. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 12 sets policies and procedures for voluntary retirement of Soldiers because of length of service. Paragraph 12-3b states, in pertinent part, that retirement will be in the regular or reserve grade the Soldier holds on the date of retirement as directed in 10 USC 3961.
11. Paragraph 12-6 (Advancement on the Retired List) of Army Regulation
635-200 contains guidance on the advancement of enlisted Soldiers on the Retired List. It indicates that advancement on the Retired List is limited to retired Soldiers who held a higher grade and successfully served in that higher grade while on active duty. There are no other provisions of law or regulation that provide for the advancement of an enlisted member who served, as a USAR commissioned officer, in a dual status.
DISCUSSION AND CONCLUSIONS:
1. The applicants contention that his records should be corrected to show his highest grade held has been noted.
2. The highest grade the applicant held on active duty was CPT and he was computed for retired pay at that grade. He was placed on the Retired List in his USAR grade of LTC; however, it appears his retirement order may have erroneously listed his retired grade as LTC.
3. Accordingly, there does not appear to be an error or injustice in his case and no basis to grant his request.
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) AR20140002856
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ABCMR Record of Proceedings (cont) AR20140002856
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