PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:            3 December 1998
	DOCKET NUMBER:   AC98-10224

	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. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Edward Williamson		Member	
	Mr. Roger W. Able		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, that his DD Form 214 be corrected to show his USAR commissioned grade instead of his Regular Army enlisted grade.

3.  He states that he was commissioned as a captain and should have that rank reflected on his DD Form 214.

4.  In support of his application he submits his commission as a reserve captain dated 16 November 1979.

5.  The applicant's military records show that he entered on active duty in pay grade E-1 on 5 January 1960, served continuously on active duty in the Regular Army, was awarded the military occupational specialties of track vehicle mechanic and recruiter, was promoted to pay grade E-7, and served in Korea, France, Vietnam and Germany.

6.  When the applicant submitted his request to retire, he completed a DA Form 2339, Application for Voluntary Retirement.  Item 13 of that form, “Request transfer to Retired Reserve in the following status” has the options of commissioned, warrant officer and enlisted.  The applicant chose to be transferred to the Retired Reserve in his enlisted status.

7.  Army Regulation 635-200 provides for the placement of enlisted soldiers on the retired list.  Paragraph 12-4 of this regulation dated 21 November 1977, in effect at the time, required that the retirement of a soldier be in the pay grade he or she holds on the date of retirement.  Paragraph 12-5b states that an enlisted member who holds a reserve commission, who has more than 20 but less than 30 years of active service, may elect to be transferred to the Retired Reserve in either their enlisted or commissioned status.  If the enlisted status is chosen, the soldier’s commission is vacated upon his or her transfer to the Retired Reserve since a soldier cannot hold more than one status as a reservist.  Once the soldier makes the election and is retired, the election cannot be changed.

8.  Title 10, U.S. Code, section 3964, states that enlisted members who are retired with less than 30 years of active service will be advanced to the highest grade they successfully held upon attaining 30 years of service based on active service and time spent on the retired list.  Section 1370 states that a commissioned officer’s highest grade will be the grade in which he or she served satisfactorily for not less than 6 months.

9.  Title 10, United States Code, section 3911, states that regular or reserve commissioned officers may retire as commissioned officers if they have at least 20 years of service, 10 years of which have been active service as a commissioned officer.

CONCLUSIONS:

1.  The applicant was properly released from active duty as a sergeant first class since that is the rank he held at that time.  As such, his DD Form 214 is correct and there is no reason to change it.

2.  The applicant was not eligible to be retired as a captain not only because he never served on active duty in that grade, but also because he did not serve 10 years on active duty in a commissioned officer status.

3.  However, he could have elected to be transferred to the Retired Reserve in his commissioned status.  It is apparent that the applicant was not properly informed of that right and inadvertently made the election to be transferred to the Retired Reserve in his enlisted status.

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 showing that the individual concerned was transferred to the Retired Reserve on 1 February 1980 in the rank of captain.

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

BOARD VOTE:  

_JNS____  _EW____  __RWA__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		John N. Slone    ______
		        CHAIRPERSON