MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            16 December 1998
	DOCKET NUMBER:    AC98-10973

	I certify that hereinafter is recorded the record of consideration 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. Ernest M. Willcher		Chairperson	
	Ms. Lana E. McGlynn		Member	
	Ms. Carol Jo Suiter		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

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

APPLICANT REQUESTS:  That his retired grade be corrected to major and that he be given the difference in pay this correction will necessitate.

APPLICANT STATES:  That law and regulation provide for a Regular Army enlisted soldier with a USAR commission to be retired in either his commissioned or enlisted status.  He was never given that choice and would have chosen to be retired in his commissioned status if he had been offered that option.

EVIDENCE OF RECORD:  The applicant's military records show:

He enlisted in the Regular Army on 31 May 1960, was promoted to corporal, and was honorably released from active duty on 29 May 1963.

He reenlisted in the Regular Army on 2 March 1964, was promoted to pay grade E-5, and was discharged from his enlisted status on 13 July 1966 in order to accept a USAR commission.

He remained on active duty serving in his commissioned status, being promoted to captain, and was honorably released from active duty on 4 September 1973 and transferred to the USAR Control Group by reason of reduction in strength.  He had served 7 years, 1 month and 21 days as a commissioned officer on active duty.

He enlisted in the Regular Army on 7 January 1977 in pay grade E-5.  He was promoted to pay grade E-7 in the Regular Army and to the rank of major in the USAR.  He was honorably discharged on 31 December 1981 and placed on the retired list the following day.

On 13 September 1991 the applicant was advanced on the retired list to the rank of captain.

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.

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.

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.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:

1.  The applicant was not eligible to be retired as a captain or a major because he did not serve 10 years on active duty in a commissioned status.

2.  Since he could not be retired in his commissioned status, he was properly placed on the retired list in pay grade E-7.

3.  Upon attaining 30 years of service based on his active service and the time he spent on the retired list, he was properly advanced on the retired list to the rank of captain since he had served in excess of 6 months in that rank while on active duty.  He could not be advanced to major since he never served on active duty in that rank.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

EMW____  LEM____  CJS________  DENY APPLICATION

						Loren G. Harrell
						Director

CASE ID	AC98-10973	
SUFFIX		
RECON		
DATE BOARDED	1998 December 16	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1981 December 31	
DISCHARGE AUTHORITY	Title 10 US Code Section 3914	
DISCHARGE REASON	Retirement	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	129.04	
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