MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           5 April 2000                   
	DOCKET NUMBER:   AR2000036273

	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.

	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Stanley Kelley		Member	
	Mr. Lester Echols		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 he be advanced to lieutenant colonel on the retired list.

APPLICANT STATES:  That he should be advanced to lieutenant colonel on the retired list in accordance with Title 10, U. S. Code and with the settlement agreement in his case against the United States in the Court of Federal Claims.

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

He enlisted in the Regular Army on 17 October 1966 and was discharged on     12 March 1970.  He entered on active duty as a commissioned officer on          13 March 1970, was discharged on 30 September 1984 in the rank of major and entered the U. S. Army Reserve (USAR).  He was promoted to lieutenant colonel on an unknown date but apparently shortly after he entered the USAR.  Between this date and 10 September 1989 he served four periods of active duty for training for a total of 9 months and 22 days.

On 4 February 1989, the applicant submitted a DA Form 160, Application for Active Duty, to serve an indefinite period as a warrant officer aviator.  His request was approved and he was accessed into active duty on 10 September 1989.  Although he reported as ordered, he apparently did not sign an acceptance certificate or an oath of office.  On 4 January 1991, he requested that his records be corrected to show he was serving on active duty as a lieutenant colonel.  The U. S. Total Army Personnel Command advised him he was not entitled to have his records changed and offered him the option of either accepting the appointment as a warrant officer or be released from active duty.  He accepted his appointment as a warrant officer “under duress.”

The applicant retired for length of service on 30 September 1993 in the rank of chief warrant officer two.

The applicant filed suit in the U. S. Court of Federal Claims.  As part of the settlement agreement, the Government agreed to correct his records to show that he served on constructive active duty from 25 September 1987 through      30 April 1989 (a period of 1 year, 7 months and 6 days) and that he retired as a reserve officer in the rank of major effective 1 May 1989 with appropriate entitlement to retired pay to include the time he served as a warrant officer.  The settlement went on to state “The parties further agree that after retirement as a major, plaintiff will be entitled to advancement to lieutenant colonel at the completion of 30 years active and retired list service, to the extent he is otherwise entitled by law and not by virtue of this Settlement Agreement.”

Title 10, U. S. Code, chapter 369 governs retired grades.  Section 3961 of that title states that the retired grade of a regular commissioned officer who retires other than for physical disability and the retired grade of a reserve commissioned officer of the Army who retires other than for physical disability or for nonregular service under chapter 1223 of this title, is determined under section 1370 of this title.  Section 1370 provides that, in order to be eligible for voluntary retirement under any provision of this title in a grade above major, a commissioned officer of the Army must have served on active duty in that grade for not less than three years.  Section 3964 provides that warrant officers and enlisted members may, when their active service plus their service on the retired list totals 30 years, be advanced on the retired list to the highest grade in which they served on active duty satisfactorily.  There is no provision for advancing a commissioned officer who retired for other than physical disability on the retired list after the completion of a specific period of service.

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

1.  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.

2.  The settlement agreement stated that the applicant would be entitled to advancement to lieutenant colonel at the completion of 30 years active and retired list service, to the extent he is otherwise entitled by law and not by virtue of the settlement agreement.  The Board concludes he is not entitled by law to such advancement.  Title 10, U. S. Code states that in order to be eligible for voluntary retirement in a grade above major, a commissioned officer must have served on active duty in that grade for not less than three years.  Even with the constructive service granted him by the settlement agreement, the evidence of record shows that he served on active duty as a lieutenant colonel for less than three years.  In addition, there is no provision for advancing a commissioned officer who retired for other than physical disability on the retired list after the completion of a specific period of service.

3.  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

__rvo___  ___sk___  ___le___  DENY APPLICATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR2000036273	
SUFFIX		
RECON		
DATE BOARDED	20000405	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	136.06	
2.		
3.		
4.		
5.		
6.