MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  9 February 2000
	DOCKET NUMBER:   AR1999022539

	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. Theodore G. Heartley		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Deborah S. Jacobs		Member	
	Ms. Carol J. 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:  Correction of his records by allowing him to retire in the rank of colonel (COL), pay grade 0-6. 

APPLICANT STATES:  In effect, that the evidence supports his contention that he is eligible to retire in grade 0-6; that his additional 4 years of service after his release from the Active Guard/Reserve (AGR) program, which was calculated prior to his entry into the AGR program, more than met the intent of the law as it applied to active service; and that the opinion from the National Guard Bureau (NGB), Judge Advocate General (JAG) also supports his contentions.  He further states that the Department of the Army, Office of the Judge Advocate General (OTJAG) rendered an unfavorable opinion after having his case for 18 months and only after he complained to the inspector general.

In support of his request, the applicant submitted copies of documents which were also found in his records.  Among those documents not in his records were the NGB JAG and OTJAG opinions, a request for retirement grade determination and NGB decision and his detailed personal statement. 

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

He had 6 years, 10 months and 20 days of enlisted service.  He was commissioned as a second lieutenant in the NG on 28 July 1968.  He was promoted to lieutenant colonel (LTC) on 12 December 1986 and COL on 1 July 1992.

On 30 July 1991, the Florida Army National Guard (FLARNG) ordered him to full time AGR duty with an effective date of 1 November 1988.  On 25 June 1992, the FLARNG issued an order indicating that he was relieved from active duty in the AGR with an effective date of 27 July 1992.  The order indicated that his release was mandatory based on his completion of 20 years of active federal service; and that he reverted to inactive training status with a requirement to attend unit training assemblies with his assigned unit.  

On 17 April 1996, he requested voluntary retirement under the provisions of Title 10 USC § 3911 with an effective date of 30 April 1996.

His latest DD Form 214, separation document, covering his last period of active service from 16 April to 30 April 1996, showed that he retired from the ARNG Component under the authority of Army Regulation 600-8-24.  His DD Form 
214 also indicated that he had 20 years, 5 months and 14 days of prior active service. 

In his personal statement, the applicant provided a chronology of events involving his dispute with the Department of the Army and the NG in particular, 

over his contention that he met the 6-month time-in-grade (TIG) on active duty requirement to retire in grade 0-6.  He stated, in effect, that his records showed  6 months and 16 days of creditable active duty time in the rank of COL, pay 
grade 0-6, accumulated from his attendance at the Army War college and other periods of NG active duty over a 4-year period from 1 July 1992 through his retirement on 30 April 1996.

The NGB JAG opinion of 23 December 1996, stated, in effect and in pertinent part, that he was released from full time NG duty in the AGR program under Title 32 USC, on 27 July 1992, just 27 days after his promotion to COL 0-6 on 1 July 1992; that the FLARNG attempted to retain him in the AGR program beyond his 
20 years of active service but the request was denied; and that after his release from the AGR program, he reverted to M-day status and the FLARNG hired him as a military technician wherein he served as the state aviation officer until his retirement on 30 April 1996.  The opinion further stated that as the state aviation officer, he accumulated 5 months and 19 days of active service through performance of short periods of full time NG duty; and that it may be determined under Title 10 USC, §1370(a)(1), he satisfied the 6-month active service requirement and may be retired in the grade of COL.

The OTJAG opinion of 30 June 1998 provided a comprehensive analysis of the statutes involved and the appropriate application to the particular circumstances of this case.  The opinion stated, in effect and in pertinent part, that by its explicit terms, Title 10 USC § 1370(a)(3) provides an exception to the general rule in Title 10 USC § 1370(a)(2) which requires that officers above the grade of major serve a minimum of 3 years in grade to voluntarily retire at that grade; that under the exception, a Reserve officer who is notified of release from active duty (REFRAD) without consent and thereafter requests voluntary retirement under Title 10 USC § 3911 and is subsequently retired pursuant to the request, is considered to have been involuntarily retired for the purpose of retired grade determination.  In this circumstance, the officer would be permitted to involuntarily retire at the highest grade held in which that service was 6 months or more under Title 10 USC § 1370(a)(1).  The opinion further stated that while Army regulations do not expressly apply to a Title 32 AGR officer who was required by ARNG tenure policies to leave full time NG duty at the end of 
20 years of active federal service, a similarly situated Reserve officer who was involuntarily REFRAD would have been required to apply for voluntary retirement upon notification of the scheduled REFRAD in order to receive benefit of Title 
10 USC § 1370(a)(3).  The applicant was released from full time NG duty without his consent on 27 July 1992, but did not request retirement until 30 April 1996. He lost benefit of the exception in Title 10 USC § 1370(a)(3) to the general rule in Title 10 USC § 1370(a)(2) when he did not elect to retire under the provisions of Title 10 USC § 3911 at the time he was notified of his REFRAD and in lieu of REFRAD.

On 22 July 1998, the FLARNG determined, after receiving an OTJAG case review and opinion, that he was involuntarily released from full time NG duty upon completion of 20 years of active service at which time he had 27 days TIG at 0-6 and did not meet the 6-month TIG exception under Title 10 USC § 1370(a)(3).  The exception was available to him only if he had requested retirement at the time of his involuntary REFRAD from the AGR program; and that accordingly, the appropriate retirement grade was LTC. 

Title 10 USC § 1370 governs the general rule and exceptions for retirement in the highest grade satisfactorily held as applicable to commissioned officers and states, in pertinent part, that under Title 10 § 1370(a)(2), an officer who retires under any provision of law other than chapters 61 or 1223, that officer may be retired in the highest grade in which the officer served satisfactorily for not less than 6 months. 

Title 10 USC § 1370 (a)(2)(A) states, in pertinent part, that in order to be eligible for voluntary retirement under any provision of this title in the grade above major, the officer must have served satisfactorily for not less than 3 years.

Title 10 USC § 1370 (a)(3) states, in pertinent part, that a Reserve officer who is notified of release from active duty without consent and thereafter requests retirement under section 3911 and is retired pursuant to that request is considered to have been involuntarily retired.

Title 10 USC § 3911 governs retirement for length of service and states, in pertinent part, that a Reserve commissioned officer having at least 20 years of service and at least 10 years of active service as a commissioned officer may request retirement.

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

1.  Although the evidence of record shows that the applicant accumulated more than 6 months of active service and TIG at 0-6 on active duty prior to his retirement on 30 April 1996, he only had 27 days TIG at 0-6 on active duty at the time of his involuntary REFRAD from AGR duty on 27July 1992 at which time he was also eligible for retirement.  At the time of his REFRAD from AGR status, he could have requested retirement in lieu of REFRAD and received the benefit of an exception to the 6-month TIG on active duty requirement which would have allowed him to retire in the grade of 0-6.    

2.  Since he did not retire at the time of his REFRAD from AGR status, the 3-year TIG on active duty rule then applied and there was nothing in the evidence 

of record or in the evidence submitted by him that indicated he sufficiently satisfied this requirement in order to retire in the grade of 0-6.

3.  The Board concludes that his administrative separation and retirement in the rank of LTC, pay grade 0-5, was accomplished in compliance with applicable regulations with no indication of procedural errors that would tend to jeopardize his rights.

4.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

5.  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

_RO___  __DJ___  __CS___  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999022539	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2000/02/09	
TYPE OF DISCHARGE	(HD)	
DATE OF DISCHARGE	19960430	
DISCHARGE AUTHORITY	AR600-8-24	
DISCHARGE REASON	SUFFICIENT SERVICE FOR RETIREMENT	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	131	
2.		
3.		
4.		
5.		
6.