BOARD DATE: 16 December 2014
DOCKET NUMBER: AR20140002904
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 correction of his records to show he was placed on the Retired List in the highest grade in which he served.
2. The applicant states he believes he should have been retired in the highest grade he held. He was told it would be done when he reached 30 years of service; however, it did not occur.
3. The applicant provides a letter from the Army Grade Determination Review Board.
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. On 18 April 1955, the applicant enlisted in the Maine Army National Guard (MEARNG) and served in an enlisted status until 24 July 1964. On 25 July 1965, he was appointed as a U.S. Army Reserve (USAR) second lieutenant (2LT) and he also accepted an appointment as a second lieutenant in the MEARNG.
3. On 26 June 1966, he was ordered to active duty. He was promoted to the rank of first lieutenant on 18 April 1967 and was promoted to the rank of captain (CPT) on 1 May 1968.
4. On 23 December 1971, a memorandum was dispatched to the applicant informing him that an Army Active Duty Board had determined he should be released from active duty (REFRAD) within 90 days of the notification.
5. On 30 April 1972, he was honorably REFRAD and transferred back to the MEARNG. On 17 January 1974, he was honorably discharged from the USAR.
6. On 10 January 1975, he enlisted in the MEARNG in the pay grade of E-7. He entered an active duty status on 24 January 1977 and was promoted to the pay grade of E-8 on 1 April 1985. He continued to serve on active duty until his retirement.
7. On 27 October 1994, he was retired in the pay grade of E-8 under the provisions of Army Regulation 635-40, paragraph 4-24b(1) due to permanent disability. He had served 26 years, 7 months, and 3 days of active service and had 38 years, 5 months, and 21 days of service for pay purposes.
8. A review of his official records failed to show that a grade determination was made at the time of his retirement.
9. Title 10 of the U.S. Code, section 1370 (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 6 months.
10. 10 USC 1372 states a member who is retired for disability is entitled to the grade equivalent to, in part, the highest grade or rank in which he served satisfactorily, as determined by the Secretary of the armed force from which he is retired.
11. 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.
DISCUSSION AND CONCLUSIONS:
1. The applicants contention that his records should be corrected to show his highest grade held has been noted and found to have merit.
2. The applicant served on active duty as a commissioned officer for 5 years, 10 months, and 5 days and was REFRAD in the rank of CPT.
3. The highest grade the applicant held on active duty was CPT; however, he was placed on the Retired List in the pay grade of E-8 instead of the rank of CPT.
4. Accordingly, his records should be corrected to show that he applied for advancement on the Retired List prior to 27 October 1994, that his request was timely approved, and that he was placed on the Retired List in the rank of CPT effective 27 October 1994, with entitlement to all back pay and allowances that flow from that change without regard to the provisions of the Barring Statute.
5. Additionally, the applicant should be paid at the rate that is most advantageous to the applicant (E-8 or CPT).
BOARD VOTE:
___X_____ ___X_____ ___X__ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
________ ________ ________ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined that the evidence presented was 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 showing the applicant was retired in the rank of CPT on 27 October 1994 with
entitlement to all back pay and allowances from that date and he should be paid at the rate that is most advantageous to the without regard to the provisions of the Barring Statute.
_______ _ 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) AR20140002904
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