BOARD DATE:	  8 October 2015

		DOCKET NUMBER:  AR20150000513 


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, the spouse of a deceased former service member (FSM), requests, in effect, the FSM’s pay grade be changed from major (MAJ)/O-4 to lieutenant colonel (LTC)/O-5 on the Retired List.

2.  The applicant states the FSM was an LTC in the U.S. Army Reserve (USAR) and she has his promotion orders and other documentation to prove it.  She discovered it while going through his military records for his Department of Veterans Affairs (VA) claim.  He suffered from Pick’s disease and she was appointed as his fiduciary for all legal matters.  

3.  The applicant provides:

* memorandum, subject:  Promotion as a Reserve Commissioned Officer of the Army Under Title 10 of the U.S. Code (AR 135-155), issued by the U.S. Total Army Personnel Command, St. Louis, MO, dated 25 May 1989
* DA Form 2976-R (Application for Individual Mobilization Augmentation Program Assignment)
* FSM’s Certificate of Retirement
* FSM’s resume
* VA Form 21-4703 (Fiduciary Agreement)
* a letter from the Army Review Boards Agency to the FSM
* FSM’s DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)  
* FSM’s DD Form 215 (Correction to DD Form 214)
* FSM’s VA Rating Decision 
* Certificate of Death
* Certificate of Marriage
* Durable General Power of Attorney

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.  After having prior enlisted service in the Regular Army, the FSM was discharge in order to accept a commission as a warrant officer.  On 5 May 1970, he was appointed as second lieutenant in the U.S. Army Reserve (USAR).

3.  A memorandum, subject:  Notification of Eligibility for Retired Pay as Age 60, dated 3 February 1989, shows he was issued a twenty-year certification letter. 

4.  Orders 65-20, issued by Headquarters, 1st, U.S. Army and Fort George E. Meade, Fort George G. Meade, MD, dated 10 April 1989, show he was relieved from his USAR unit and assigned to USAR Control Group (Reinforcement) effective 10 April 1989.  He was relieved because he was promotable and there were no authorized vacancies.

5.  On 25 May 1989, he was promoted to lieutenant colonel in the USAR with an effective date of 4 May 1989.  

6.   USAR Personnel Command Form 249-E (Chronological Statement of Retirement Points), dated 7 September 2006, shows he failed to attain 50 points annually after 15 June 1990.

7.  Orders P04-904849, issued by the U.S. Army Human Resources Command,  St. Louis, MO, dated 17 April 2009, show he was placed on the Retired List effective 28 October 2008, in the grade of MAJ.  

8.  The FSM’s record is void of any evidence and the applicant has not provided any evidence that shows the FSM earned at least 50 points annually after          15 June 1990.

9.  Army Regulation 140-10 (Assignments, Attachments, Details, and Transfers) states an officer (other than a commissioned WO) or enlisted Soldier who has accrued 20 years of qualifying service for retired pay is required to attain 50 points annually to be retained in an active status in the Selected Reserve, IRR, or Standby Reserve (Active List).  An officer or enlisted Soldier who fails to attain 50 points by the anniversary of his or her retirement year ending date will be removed from active status.  Soldiers removed from active status will be discharged or transferred to the Retired Reserve.  Transfer to the Retired Reserve is authorized when requested by Soldiers who are eligible.

10.  Title 10, U.S. Code, section 1406, states a person who is entitled to non-regular service retirement pay is entitled to retired pay at the rate of the highest grade held satisfactorily by the person at any time in the Armed Forces.  The highest grade in which a person served satisfactorily as an officer shall be determined in accordance with section 1370(d) of this title.

11.  Title 10, U.S. Code, section 1370(d), states in order to be credited with satisfactory service in an officer grade above MAJ, a person must have served satisfactorily in that grade (as determined by the Secretary of the Military Department concerned) as a Reserve commissioned officer in an active status or in a retired status on active duty for not less than 3 years.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, the FSM’s retired grade should be LTC instead of MAJ.  

2.  Title 10, U.S. Code, section 1370(d), states that in order to be retired in a grade above major, a person must serve in that grade in an active status for 3 years.  

3.  The applicant did not serve in the grade of LTC for 3 years in an active status. Therefore, he was properly placed on the Retired List in the grade of MAJ.

4.  In view of the above, the FSM was only entitled to nonregular retired pay at the level of MAJ.



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)                                         AR20150000513





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ABCMR Record of Proceedings (cont)                                         AR20150000513



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