IN THE CASE OF:  	  

		BOARD DATE:  22 January 2015	  

		DOCKET NUMBER:  AR20140008877 


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 be placed on the Retired List in the grade of captain (CPT).

2.  The applicant states his service was governed by dual component, which entitled him to the highest rank held upon completion of his military service at retirement.  During his initial enlistment he was commissioned as a reserve officer in May 1986 and later entered on active duty in June 1987 without a break in service.  He was assigned to the U.S. Army Reserve Control Group (Dual Component).

3.  He states he is entitled to an upgrade of his retirement status to CPT.  While on active duty as an enlisted Soldier he still received both non-commissioned officer evaluation reports (NCOER) and officer evaluation reports (OER).  He reenlisted several NCOs and signed the reenlistment documents as the reenlistment officer due to the fact that he held a commission as an officer.  Prior to being discharged from the Reserve component in August 2006, which covered his enlistment as a commissioned officer, he served as a Reserve officer covering a period from May 1986 to August 2006.

4.  The applicant provides:

* DD Form 4 (Enlistment/Reenlistment Document, Armed Forces of the United States), dated 19 March 1983
* orders to initial active duty for training (IADT), dated 19 March 1983
* DD Form 220 (Active Duty Report), dated 1 September 1983
* certificate of appointment as a second lieutenant (2LT) in the U.S. Army Reserve (USAR), dated 10 May 1986
* DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 17 April 1987
* DA Form 428 (Application for Identification Card), dated 16 April 1987
* orders for transfer to the USAR Control Group (Dual Component), dated 19 August 1987
* three OERs
* four letters, dated 4 and 14 August 1989, 1 March 1994, and 17 June 1994, from U.S. Total Army Personnel Command (TAPC), St. Louis, MO
* a letter, dated 9 November 1992, from the USAR Personnel Center, 
St. Louis, MO
* U.S. Army Human Resources Command (HRC) Orders D-08-617823, dated 3 August 2006
* DA Form 1506 (Statement of Service - For Computation of Length of Service for Pay Purposes), dated 24 June 2011
* his retirement orders
* DD Form 214 with a separation date of 30 November 2011

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 AR20130005735, on 3 December 2013.

2.  On 19 March 1983, he enlisted in the USAR.  On 19 March 1983, he was ordered to IADT to report 28 June 1983.  He was released from active duty on 
28 August 1983 and transferred to a Reserve unit.

3.  On 10 May 1986, he was appointed a 2LT in the USAR.  He entered active duty on 14 September 1986.  On 17 April 1987, he was released from active duty in the rank of 2LT.

4.  Headquarters, 5th U.S. Army, Fort Sam Houston, TX Orders 160-7, dated 
19 August 1987, released him from his assignment by reason of his enlistment in the Regular Army effective 21 June 1987.  He was transferred to the USAR Control Group (Dual Component).

5.  On 22 June 1987, he enlisted in the Regular Army (RA).  He served on active duty continuously until his retirement.

6.  A memorandum, dated 14 August 1989, from TAPC promoted him to first lieutenant (1LT) effective 27 May 1989.

7.  A memorandum, dated 17 June 1994, from TAPC promoted him to CPT effective 26 May 1994.

8.  On 1 December 1996, he was promoted to sergeant first class (SFC)/E-7 in the Regular Army.

9.  HRC Orders D-08-617823, dated 3 August 2006, honorably discharged him from the USAR Control Group (Dual Component) effective 3 August 2006.

10.  On 30 November 2011, he was retired in the grade of SFC and placed on the Retired List in the grade of SFC the following day.  He completed 25 years, 
2 months, and 14 days of active service.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

	a.  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 Title 10 of the U.S. Code, section 3961 (10 USC 3961).  

	b.  Paragraph 12-6 (Advancement on the Retired List) 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.  For advancement to a commissioned officer grade, the Soldier must have served satisfactorily on active duty in this grade for not less than 6 months. 

12.  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.  The law requires a member to serve on active duty in the rank and pay grade of captain/O-3 for a minimum period of 6 months in order for service in this rank and pay grade to be considered satisfactory for advancement on the Retired List purposes.  

13.  10 USC 3964 provides the legal authority for advancement of warrant officers and enlisted members on the Retired List.  Warrant officers and enlisted members of the Army are entitled, when their active service plus their service on the retired list totals 30 years, to be advanced on the Retired List to the highest grade in which they served on active duty satisfactorily.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he received OERs while he was on active duty in an enlisted status.  He contends he performed in his dual status while on active duty in an enlisted status.  He reenlisted several NCOs and signed reenlistment documents as the reenlistment officer.   

2.  He was appointed a 2LT in the USAR on 10 May 1986 and served on active duty from 14 September 1986 to 17 April 1987 in an officer status.

3.  On 21 June 1987, he was transferred to the USAR Control Group (Dual Component).  He enlisted in the RA on 22 June 1987.  He remained a 2LT in the USAR Control Group (Dual Component) while being assigned as an enlisted Soldier on active duty. 

4.  He was promoted to 1LT on 27 May 1989 and to CPT on 26 May 1994.  However, there is no evidence he served at least 6 months on active duty and was assigned as a 1LT or CPT.  Therefore, it appears his highest grade held was 2LT.

5.  His dual status in the USAR as a captain does not fulfill the active duty satisfactory service requirement necessary for advancement on the Retired List.  Therefore, he is not authorized advancement on the Retired List to captain.

6.  Prior to requesting advancement to the Retired List, he should contact the Defense Finance and Accounting Service to ensure there is no loss of pay.  Based on his years of active duty upon retirement, he will be eligible for advancement on the Retired List on 22 August 2016 upon reaching his 30-year point under the provisions of 10 USC 3964.   


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 AR20130005735, dated 3 December 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)                                         AR20140008877



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ABCMR Record of Proceedings (cont)                                         AR20140008877



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