IN THE CASE OF:	  

		BOARD DATE:	  30 December 2014

		DOCKET NUMBER:  AR20140003418 


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 his previous request to receive retired pay as a major (MAJ).

2.  The applicant states he desires his grade determination be reviewed based on his U.S. Army Reserve (USAR) status for USAR retirement/advancement at age 60 instead of the decision to evaluate his active duty rank under the 30-year active duty regulation.  He states that under paragraph 32 of Army Regulation 600-39 (Dual Component Personnel Management Program) he is eligible for advancement on the retired list.

3.  The applicant provides:

* a memorandum, dated 4 August 1993, from the U.S. Total Army Personnel Command (TAPC), St. Louis, MO, subject:  Promotion as a Reserve Commissioned Officer of the Army Under Title 10, U.S. Code (USC)
* TAPC Orders S130-21, dated 13 July 1994
* DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 30 September 1992

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 AR20130002454, on 17 October 2013.

2.  The applicant's statement contains a new argument that merits consideration by the Board.

3.  The applicant served in the Regular Army in an enlisted status from 30 June 1975 to 9 July 1981.  He was ordered to active duty on 10 July 1981 as a commissioned officer.  On 30 September 1992, he was released from active duty due to reduction in authorized strength.  His rank was captain (CPT) and his pay grade was O-3E.  On 1 October 1992, he enlisted in the Regular Army.  He retained his commission as a dual-status Soldier.

4.  The memorandum, dated 4 August 1993, from TAPC announced his promotion to MAJ as a Reserve commissioned officer of the Army effective 
9 April 1993.  The orders noted the applicant was then serving on active duty as a staff sergeant (SSG).

5.  On 31 March 1995, he was retired by reason of completing sufficient service for retirement.  He completed a total of 20 years and 4 days of active service.  TAPC Orders S130-21, dated 13 July 1994, states his retired grade for pay is CPT and his retired grade of rank is MAJ.

6.  There is no evidence the applicant served on active duty as a MAJ.

7.  On 12 December 2005, the Army Grade Determination Review Board (AGDRB) determined the highest grade in which he served satisfactorily for the purpose of computation of retired pay was O-3E (CPT).  

8.  On 10 January 2006, TAPC notified him that he was already being paid by Defense Finance and Accounting Service (DFAS) as a CPT (O-3E).  Therefore, based on the determination by the AGDRB, no further action was required to correct his pay status.

9.  Paragraph 32c of Army Regulation 600-39, then in effect, stated on completion of 30 years of service, a member was advanced to the highest grade satisfactorily held while serving on active duty as determined by the Secretary of the Army.

10.  Title 10, USC, section 1370 (Commissioned officers: general rule; exceptions) provides, in part, rules for retirement in the highest grade held satisfactorily.  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 be retired in the highest grade in which he/she served on active duty satisfactorily, as determined by the Secretary of the military department concerned, for not less than 6 months.

11.  Title 10, USC, chapter 1223 (Retired pay for non-regular service) section 12731(a)(4) and (f) states a person is entitled, upon application to retired pay computed under section 12739 of this title, if the person has reached the age of 60 and is not entitled, under any other provision of law, to retired pay from an armed force or retainer pay as a member of the Fleet Reserve of the Fleet Marine Corps Reserve.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his grade should be determined based on his Reserve status instead of his active duty status.

2.  Title 10, USC, chapter 1223 specifically states a person is not entitled to non-regular service retired pay if entitled to retired pay under any other provision of law.  The applicant retired with 20 years of active service.  Therefore, he is not entitled to computation of retired pay based on his Reserve status at age 60.

3.  The applicant cites paragraph 32 of Army Regulation 600-39 as authorizing his advancement to MAJ on the retired list.  However, paragraph 32c of the regulation specifically states a member was advanced to the highest grade satisfactorily held while serving on active duty.  Therefore, he would have had to have served on active duty in the grade of MAJ to be advanced on the retired list to that grade.

4.  There is no evidence he served on active duty in the grade of MAJ.  The highest grade he held on active duty was CPT (O-3E).  Therefore, under the provisions of Title 10, USC, section 1370, the highest grade in which he can receive retired pay is O-3E.

5.  In view of the above, there is no basis on which to grant relief.


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 AR20130002454, dated 17 October 2013.




      _______ _   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)                                         AR20140003418



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140003418



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1