IN THE CASE OF:  

		BOARD DATE: 28 May 2015

		DOCKET NUMBER:  AR20140016568 


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 her records to show she retired in the rank/grade of lieutenant colonel (LTC)/O-5.
 
2.  The applicant states that:

	a.  The retirement paperwork she received from the U.S. Army Human Resources Command (HRC) showed her rank as major (MAJ), but she had been selected for promotion to LTC and received an identification (ID) card as a LTC.  Her records and retirement pay should reflect LTC.

	b.  She was forced to relinquish her promotion pay from December 2004 to December 2005, and she was forced to pay back 6 months of pay because personnel at HRC could not do their job correctly.  HRC also refused to correct her time in service.  

	c.  HRC states she was not in an LTC position, because her command removed her from her assigned position.  This is incorrect.  First, she was assigned to the Deputy Chief of Staff for Logistics (LTC) position in Headquarters, 7th Army in Europe and she never received nor were any orders issued to remove her from the position.  

	d.  Her promotion orders listed the promotion date as 1 December 2004 and when those orders were received the Chief of Staff , Colonel (COL) W______, placed a flag on her record in January 2005 to stop the promotion.  She went through the appeals process in U.S. Army Europe (USAREUR), her records went to a Department of the Army (DA) Promotion Review Board (PRB), and she was approved for promotion.  

	e.  COL W______ stopped her unit from processing her LTC pay actions and she was forced to wear MAJ rank even though she had an ID Card showing her rank as LTC.  He would only let her transfer if she agreed to sign a voluntary release agreement, having extended her past her date eligible to return from overseas (DEROS).  

	f.  When she was finally able to leave Germany in July 2005 she reported to Fort Myer, VA, to receive her DD Form 214, but HRC refused to complete a DD Form 214.  After 6 months of checking into the post personnel center trying to get her papers completed, the Army dropped her from the rolls and forced her to pay back 6 months of pay.  

	g.  On 3 July 2005 she submitted a DA Form 1506 (Statement of Service - For Computation of Length of Service for Pay Purposes) dated 10 April 2003 to correct her time of service from 21 years, as HRC currently listed, to 26 years, 
7 months, and 13 days.  She believed this would be corrected when she received her retirement pay, but HRC refused to consider the issue.  A representative from her Congressman's office recommended she apply to the Board to have her records corrected. 

3.  The applicant provides copies of her:

* reassignment orders to Germany
* DA Form 1506
* HRC memorandum, dated 14 December 2004, announcing promotion to LTC
* DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG))
* U.S. Total Army Personnel Command, St. Louis, Memorandum, subject:  Notification of DA Promotion Review Board Results, dated 8 April 2005
* Headquarters, U.S. Army Europe memorandum, subject:  German Traffic Offense, dated 26 May 2005
* Defense Finance and Accounting Services (DFAS) Account Statement, dated 12 June 2006
* HRC orders announcing her retirement as a MAJ, effective 15 May 2014



CONSIDERATION OF EVIDENCE:

1.  The applicant is a retired USAR MAJ.
 
2.  Orders R-11-106934, U.S. Army Reserve Personnel Command, St. Louis, Missouri, dated 21 November 2001, show she was ordered to active duty as a MAJ in active guard/reserve status effective 2 January 2002.  The orders further show she was released from attachment from Headquarters, Eighth U.S. Army Korea and directed to report to Headquarters 7th Army Europe.

3.  The performance section of her Official Military Personnel File (OMPF) in the Interactive Personnel Electronic Records Management System (iPERMS) shows she received a letter of reprimand on 27 January 2004 for falsifying her birth certificate and claiming a false civilian educational degree.  She submitted matters on her own behalf and the imposing authority directed the letter be filed in her OMPF.

3.  A 14 December 2004 HRC memorandum shows she was promoted to LTC with date of rank of 1 December 2004.

4.  A DA Form 268, dated 31 March 2005, shows a flag on her record was removed that date and the case was closed favorably.

5.  An 8 April 2005 HRC Memorandum shows that a DA Reserve Components Selection Board that recessed on 29 September 2004 recommended her for promotion to LTC in the USAR.  The memorandum further shows that her records were forwarded to a DA Promotion Board that had recessed 23 March 2005 for reconsideration of her promotion had recommended her name not be removed from the recommended list and her case was closed favorably.

6.  Her records contain a copy of Orders D-06-590150, U. S. Army HRC, St. Louis, Missouri, dated 2 June 2005, announcing she was discharged from the USAR/Active Guard Reserve effective 16 June 2005 as a MAJ.  The additional instructions show she was to be issued a General Discharge Certificate.  Her discharge documentation is not available.

7.  A DFAS Account Statement, dated 12 June 2006, shows she had a debt to the Government due to payments received after she had entered a no pay status on 4 July 2005.

8.  Orders C03-491799, HRC, dated 11 March 2014, show she was placed on the retired list effective 15 May 2014 as a MAJ. 

9.  In the processing of this case, an advisory opinion, dated 5 November 2014, was obtained from the Chief, Reserve Component Retirements Branch, HRC.  The opining official stated:

	a.  Title 10, U.S. Code, Chapter 69, governs retired grade for Soldiers.  The law states in order to retire at the rank of LTC, the officer must serve 3 years time-in-grade (TIG) unless involuntarily retired.  If involuntarily retired the officer must complete at least 180 days to retire at the highest grade held.

	b.  The applicant was voluntarily discharged from the Active Guard/Reserve prior to serving three years as a LTC; therefore she does not meet the criteria to retire as a LTC and she is ineligible to receive retired pay as a LTC.

10.  On 25 November 2014, a copy of the advisory opinion was forwarded to the applicant for information and to allow her an opportunity to submit comments or a rebuttal.  She responded stating:

	a.  She enlisted in the Army in 1979 and was told that those rules would apply to her for her career.  She believes the rule in effect in 1979 was that the TIG for retirement was 6 months. 

	b.  She believes the Army owes her pay for the period July to December 2005 while she was waiting for her DD Form 214.  

11.  Title 10, U. S. Code, section 1370(a)(2) provides that in order to be eligible for voluntary retirement under any provision of this title in a grade above major or lieutenant commander, a commissioned officer of the Army, Navy, Air Force, or Marine Corps must have served on active duty in that grade for not less than three years, except that the Secretary of Defense may authorize the Secretary of a military department to reduce such period to a period not less than two years.

12.  Army Regulation 600-8-29 (Officer Promotions) prescribes policies and procedures governing promotion of Army commissioned and warrant
officers on the active duty list.  Paragraph 1-18b(1) (Accepting promotion) states  the impact of promotions on service obligations and retirement is as follows:  the active duty service obligation is a specific period of active duty an officer must serve before being eligible for voluntary separation or retirement.  Officers accepting a promotion to any grade other than CW3, CW4, and CW5
do not incur an additional service obligation.  To retire or separate in the next higher grade, an LTC must serve satisfactorily in the new grade 3 years.

13.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  Paragraph 2-9 states the ABCMR begins consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her military records should be corrected to show she was retired as a LTC.

2.  While an HRC memorandum shows she was promoted to LTC with a DOR of 
1 December 2004, the law states that to retire in the grade of LTC she would have had to serve 3 years in that grade.  She was discharged on 16 June 2005.  Orders show she retired as a MAJ effective 15 May 2014.

3.  The applicant provided no evidence to substantiate her claim that she was informed the rules in effect in 1979 would pertain to her throughout her career or that HRC refused to consider her claims that her length of service is incorrect.

4.  The regulation governing the Board's operation begins with the presumption that the discharge process was conducted in accordance with applicable laws and regulations unless the applicant can provide evidence to overcome that presumption.

5.  In view of the above, the applicant's request should be denied.

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 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)                                         AR20110021833



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ABCMR Record of Proceedings (cont)                                         AR20140016568



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