PROCEEDINGS

	IN THE CASE OF:        

	BOARD DATE:            9 December 1999
	DOCKET NUMBER:   AR1998012053

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Loren G. Harrell		Director	
	Mr. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Ms. JoAnn H. Langston		Chairperson	
	Mr. Thomas D. Howard, Jr.		Member	
	Mr. James P. Steuve		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A -  Application for correction of military 
                              records
	Exhibit B -  Military Personnel Records (including
	                  advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, readjustment of his retirement grade and recalculation of retired pay.

3.  The applicant states, in effect, that he seeks readjustment of his retired grade and retirement pay, having completed his service upon reaching the mandatory age of 64 on 31 August 1997.  He seeks recognition of his promotion to MG in the Iowa Army National Guard (IARNG), based on the Federal recognition of that promotion, and he wishes a recalculation of his Retired pay based on his service in a Federal status over his 19 years of service in the IARNG.  He claims that there are retired Reserve MG’s who served a minimum of active duty and draw military retirement pay exceeding what he draws, even though he served on active duty for 25 years and in the ARNG for 19 additional years.  He opines that that there is legal precedent for this adjustment that accompanied his initial submission.  He goes on to say that if this adjustment is not accomplished his retirement will not meet the test of fairness and will not be consistent with equal pay for equal service.  He concludes by indicating that his situation is unique to a small number of individuals and needs to be addressed separately from the blanket provisions of the regulations as written.  He included a packet of documents attesting to the active service performed during his IARNG tenure.

4.  The applicant’s military records show that he served in the Regular Army for 23 years and 10 months, from 1 August 1955 to 31 May 1979, at which time he retired in the rank of colonel.  Subsequent to his Regular Army retirement, on 
16 July 1979, he was appointed a Brigadier General (BG) in the IARNG.  He served in the IARNG until he was honorably discharged as a Major General (MG) on 31 August 1997.

5.  On 18 May 1989, the Staff Judge Advocate (SJA) of the IARNG prepared a memorandum, at the request of the applicant, titled “Recomputation of Retired Pay in the Grade of Major General”.  In this document the SJA opined that the applicant had a statutory right to recompute his Regular Army retired pay upon reaching satisfactory service in the grade of Major General.  He goes on to state that the applicant’s right to a recomputation is not waived by his current status in the IARNG.  He goes on to say that it is this service which, upon accumulation of 180 days of active duty, entitles the applicant to a recomputation of his retired pay in the highest grade he satisfactorily held for six months.  The SJA also cites as the provisions of statute that apply in the applicant’s case as follows:  Title 
10 of the U.S. Code, Section 101 (10 USC 101), which defines active duty; 
10 USC 1402 which permits recomputation of retired pay; and 10 USC 3963, which permits a Regular, retired commissioned officer to a Retired grade equal to the highest temporary grade in the Army in which he served on active duty satisfactorily, as determined by the Secretary of the Army, for not less than 
6 months.  

6.  On 29 September 1997, the applicant requested a recalculation of his Retired pay from the Defense Finance and Accounting Service (DFAS) at Cleveland, Ohio.  On 30 June 1998, he was advised by DFAS to request this action through the Army’s Reserve Personnel Command (ARPERSCOM), St. Louis, Missouri. 

7.  On 9 July 1998, the applicant requested the recalculation from ARPERSCOM and on 29 September 1998, a legal opinion was provided, by the Deputy Legal Counsel at ARPERSCOM, in reference to the applicant’s request for advancement on the Retired List and recalculation of retired pay.  This document indicated that the applicant was serving as the Adjutant General of the IARNG in a non-Federally recognized status and that his Federal recognition terminated when he reached his mandatory removal date on 31 August 1997.  In addition, counsel indicated he found no statutory authority for transferring a Reserve officer of the Regular Army to the Retired Reserve.  He also concluded that the applicant’s retired grade is colonel which is the grade he holds on the Regular Army Retired List, under the provisions of 10 USC 3966(a).  This opinion was rooted in a Comptroller General Opinion, rendered in 1968, which stated that there was no basis which permitted the transfer of a Reserve officer to the Retired Reserve while the officer currently holds the status of a Retired officer of the Regular Army.  To so hold would result in the “anomalous situation” of having such an officer simultaneously on two separate Retired Lists.  The Comptroller General held that while the statuary authority exists for appointing an Adjutant General as an Army Reserve officer , there was no statuary authority for transferring a Reserve officer who is a Retired officer of the Regular Army to the Retired Reserve. 

8.  The record contains an ARNG current annual statement, prepared on 
22 September 1997, which documents that the applicant had accumulated 648 days of active duty while serving with the IARNG between 1979 and his discharge in 1995.  

9.  On 6 November 1998, the Director of Personnel Actions and Services for ARPERSCOM notified the applicant that his request for advancement on the Retired List, with resulting pay adjustments, was not favorably considered.  They stated that because the applicant was retired as a Regular Army officer, he would always retain that status.  They also advised the applicant that the IARNG had erroneously transferred him to the Retired Reserve when he should have been properly discharged from the IARNG and returned to the Regular Army Retired List.  They did indicate to the applicant that his length of service time could be adjusted by this Board and advised him to contact the Chief, of the Separations Branch at the Army’s Personnel Command (PERSCOM) who could assist him in this process.

10.  Chapter 5 of the Department of Defense Military Retired Pay Manuel (DoDMRPM) contains the policy and procedure for advancement on the Retired List.  These provisions, however, are applicable only to warrant officers and enlisted members of the Regular Army.  There are no provisions which allow for the advancement of a commissioned officer on the Retired list.  

11.  10 USC 1402 entitles members, who first became a member of a uniformed service before September 8, 1980, and who has become entitled to Retired pay or retainer pay, and who thereafter serves on active duty (other than for training),  to recompute their Retired pay upon their release from that subsequent period of active duty. 

CONCLUSIONS:

1.  After carefully examining the evidence of record and the independent evidence submitted by the applicant, the Board concurs with the findings rendered on this case by ARPERSCOM.  The Board agrees that the applicant was retired as a Regular Army officer and will always remain in that status.  The record shows that the applicant remained on the Regular Army Retired List and continued to receive Regular Army Retired pay while serving in the IARNG with the exception of the periods he served on active duty.  

2.  Additionally, the Board concurs with the legal opinion rendered by legal counsel at ARPERSCOM and with the Comptroller General Opinion on which it was based.  The Board found no legal basis on which to effect the applicant’s transfer to the Retired Reserve List; thus, allowing an adjustment to his Retired grade.  Therefore, the Board finds relief is not warranted in this area.

3.  However, the Board did find, in the interest of justice, that the applicant’s length of service for Retired pay as a Regular Army officer should be recomputed based on the active duty service he performed during his tenure with the IARNG.

4.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by recomputing the Regular Army Retired pay of the individual concerned, based on the active duty service he performed during his service with the IARNG between 16 July 1979 and 31 August 1997.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

___jhl___  __jps____  __tdh ___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____JoAnn Langston_____
		        CHAIRPERSON

INDEX

CASE ID	AR1998012053	
SUFFIX		
RECON		
DATE BOARDED	1999/12/09	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON		
BOARD DECISION	GRANT PARTIAL	
REVIEW AUTHORITY		
ISSUES         1.  307	129.0500	
2.  338	136.0000	
3.  283	128.0000	
4.		
5.		
6.