IN THE CASE OF:	  

		BOARD DATE:	  30 June 2015

		DOCKET NUMBER:  AR20140017956 


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 advancement on the Reserve retired list to captain (CPT)/O-3, the highest grade he satisfactorily held instead of sergeant (SGT)/pay grade E-5.

2.  The applicant states:

	a.  He reentered the military service in 2007 and was retired in the rank of SGT/E-5 in 2014. 

	b.  Prior to reentering military service, the highest rank he held was CPT.  He held this rank for 5 years and asked his retirement section why he was not retired at his highest rank.  He was told that it was an error on his command's part not to request his retirement as a CPT instead of SGT.  The retirement section stated they could not do anything to change his orders and that it would be up to the U.S. Army Human Resources Command (HRC) to do it when he reached age 60.  

	c.  He feels this error should be corrected so he can be retired at the correct rank without having to put undue stress on his spouse if something happens to him before he reaches age 60 [in 2023].  

	d.  While he was completing his retirement paperwork, he repeatedly reminded his command that he was a prior service officer.  He questioned whether they understood the situation so that his retirement pay would be at the correct rank.  Paperwork was turned in and he was retired at his last rank held, not the highest rank he held in the military.  
3.  The applicant provides:

* Promotion Orders 241-211, dated 20 December 1994
* Special Orders Number 6 AR, dated 24 January 1995
* Active duty orders, dated 3 July 2001
* Diploma from the Infantry Captains Career Course, dated 30 August 2001
* DA Form 1059 (Service School Academic Evaluation Report), dated 30 August 2001
* Reassignment orders, dated 17 June 2002
* Discharge orders from the U.S. Army Reserve (USAR), dated 30 December 2002
* Officer Evaluation Reports (OER) (front page), dated from 13 September 1994 through 19 March 2002 

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was born on 11 January 1963.  After having prior enlisted service in the Mississippi Army National Guard (MSARNG), the applicant was appointed as a second lieutenant (2LT) in the MSARNG on 27 June 1987.  

2.  On 31 May 1990, he was separated from the MSARNG and he was reappointed as a 2LT in the Texas ARNG (TXARNG), effective 1 June 1990.

3.  He was promoted to the rank of first lieutenant on 26 June 1990.

4.  He provided Orders 241-211, dated 20 December 1994, which promoted him to CPT, effective 7 November 1994.  He also provided Special Orders Number 6 AR dated 24 January 1995, which granted him Federal recognition for his promotion to CPT.  

5.  On 1 May 1999, he was discharged from the TXARNG in the rank of CPT.  On the following day he was transferred to the USAR Control Group (Reinforcement).  

6.  Orders, dated 5 April 2001, show he was released from the USAR Control Group (Reinforcement) and was assigned to a troop program unit effective 28 March 2001.  These orders show his rank as CPT.

7.  He provided the following documents:

   a.  Orders T-07-112102, dated 3 July 2001, show he was ordered to active duty for training with a reporting date of 19 August 2001.  These orders show his rank as CPT.  
   
   b.  DA Form 1059 and a diploma, dated 30 August 2001, both show he completed the Infantry Captains Career Course on 30 August 2001.
   
   c.  Seven OERs covering the period 13 September 1994 through 19 March 2002 show his rank as CPT.

   d.  Orders 02-168-00011, dated 17 June 2002, show he was reassigned to the USAR Control Group (Reinforcement) effective 17 June 2002.  These orders show his rank as CPT.

   e.  Orders D-12-249573, dated 30 December 2002, show he was discharged from the USAR effective 1 January 2003 in the rank of CPT.
   
8.  The applicant's DD Form 4 (Enlistment/Reenlistment Document) shows he enlisted in the TXARNG on 29 January 2007 for a period of 6 years in pay grade E-6.

9.  He was issued his Notification of Eligibility for Retired Pay for Non-Regular Service (20-Year Letter) on 31 January 2013.  This letter shows his rank as SGT.

10.  Orders 015-033, dated 15 January 2014 show he was discharged from the TXARNG effective 31 March 2014.  On the following day he was transferred to the USAR Control Group (Retired Reserve).  These orders show his rank as SGT (pay grade E-5).  

11.  A review of his personnel documents in the interactive Personnel Electronic Records Management System (iPERMS) revealed that he held the rank of SGT until he was discharged on 31 March 2014. 

12.  Title 10, U.S. Code, section 3964 - Higher grade after 30 years of service: 

   a.  Each retired member of the Army covered by subsection (b) who is retired with less than 30 years of active service is entitled, when his active service plus his service on the retired list totals 30 years, to be advanced on the retired list to the highest grade in which he served on active duty satisfactorily (or, in the case of a member of the National Guard, in which he served on full-time duty satisfactorily), as determined by the Secretary of the Army. 
   


   b.  This section applies to—

   (1)  warrant officers of the Army;
   
   (2)  enlisted members of the Regular Army; and
   
   (3)  reserve enlisted members of the Army who, at the time of retirement, 
are serving on active duty (or, in the case of members of the National Guard, on full-time National Guard duty).

13.  Army Regulation 135-180 (Army National Guard and Army Reserve – Retirement for Non-Regular Service states in pertinent part that it is the responsibility of all qualified individuals to submit their application for retired pay no earlier than 9 months and no later than 90 days prior to the date retired pay is to begin normally at age 60.  Applications should include among other official documents promotion orders showing the highest grade/rank held and any administrative reduction orders, if applicable.   Soldiers who joined the military on or after 8 September 1980 must place the date of rank for the highest grade held on both the DD Form 108 (Application for Retired Pay Benefits) and DD Form 2656 (Data for Payment of Retired Personnel).

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant served in the MSARNG and TXARNG from June 1987 to May 1999.  The highest grade he held during this period was CPT/O-3.  He subsequently served in the rank of CPT/O-3 until he was discharged from the USAR on 1 January 2003.  

2.  The applicant enlisted in the TXARNG on 29 January 2007 and was discharged on 31 March 2014 in the rank of SGT.  Although his enlistment contract indicates he enlisted in pay grade E-6, his service record is void of evidence which indicates he held this rank while serving in the TXARNG during the period January 2007 through March 2014.  

3.  By law, only regular retirement of reserve enlisted members of the Army who, at the time of retirement, are serving on active duty (or, in the case of members of the National Guard, on full-time National Guard duty) are eligible for advancement in grade to the highest grade satisfactorily held when their active service plus their service on the retired list totals 30 years.  

4.  He is not yet on the retired list.  However, upon application for retired pay at age 60 he can apply for retired pay at his higher grade provided he submits his promotion orders to CPT with his application.  
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)                                         AR20140017956



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140017956



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1