MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            24 August 2000
	DOCKET NUMBER:   AR2000036295

	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. Carl W. S. Chun		Director	
	Mr. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. George D. Paxson		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Mr. Allen L. Raub		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:  In effect, that he be advanced to the rank and pay grade of Captain/O-3 (CPT/0-3) on the Retired List. 

APPLICANT STATES:  In effect, that he was credited with service for retirement on 4 February 1988 and requested advancement on the Retired List on 
1 December 1997.  However, he claims to date he has not been provided a response.  He indicates that he complied with the recommendation that he apply to the Army Reserve Personnel Command (ARPERSCOM) but also received no reply from them.  

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

On 31 December 1988, he was released from active duty (REFRAD), in the rank and pay grade of Sergeant Major/E-9 (SGM/E-9), and on the following day he was placed on the Retired List in that rank and pay grade.  

The applicant’s Department of the Army (DA) Form 2-1 (Personnel Qualification Record) indicates in block 18 (Appointments and Reductions) that the applicant attained the rank of SGM/E-9 on 7 January 1987. 

The DA Form 2339 (Application for Voluntary Retirement) prepared by the applicant is on file in records.  This form verifies that he submitted his request for retirement on 17 August 1988 and that he requested a retirement date of 
31 December 1988.  It also verifies that he requested retirement in the rank and pay grade of SGM/E-9. 

The evidence of record also contains a properly constituted Department of Defense (DD) Form 214 (Certificate of Release or Discharge From Active Duty), which was issued to and authenticated by the applicant on 31 December 1988, the date of his REFRAD.  This document verifies that he was separated, under the provisions of chapter 12, Army Regulation 635-200, by reason of length of service retirement after completing a total of 20 years, 8 months, and 13 days of active military service.  In addition, the form confirms that he held the rank of SGM/E-9 on the day he was REFRAD and that on the following day he was placed on the Retired List in that rank and pay grade.

On 23 November 1981, ARPERSCOM notified the applicant that he had been identified for appointment as a CPT/0-3 in the United States Army Reserve (USAR) upon his acceptance of the appointment.  On 18 January 1982, he accepted this appointment and on 14 March 1982 he entered active duty as a CPT/0-3 to attend the Adjutant General Officer Advanced Course (AGOAC).  He completed this course on 4 August 1982 and he was REFRAD after completing 
4 months and 21 days of active military service as a commissioned officer.

On 22 October 1982, ARPERSCOM notified the applicant that his appointment as a USAR CPT was contrary to Public Law, and therefore was void.  He was also informed that a remedial legislative proposal was being drafted which would allow the Army to reinstate his appointment.  He was informed that because his appointment was null and void it was required that he be separated from his current status as a USAR officer pending resolution of the issue.  At this time he was also given the option of either being appointed a USAR 2nd Lieutenant or reverting to his former enlisted status.

On 1 November 1982, the applicant reenlisted in the USAR for a period of three years and he was immediately ordered to active duty in an Active Guard/Reserve (AGR) status as a Master Sergeant/E-8 (MSG/E-8).  He was promoted to SGM/E-9 on 7 January 1987 and he continued to serve on active duty in this enlisted status until he was REFRAD 31 December 1988.

On 19 October 1983, the applicant was advised that based on the passage of the Department of Defense (DOD) Authorization Act of 1984 his USAR appointment as a CPT/0-3 could be revalidated with his consent or he could, if he desired, elect to retain his current military status.  The applicant was required to submit a written expression of his option election, which he failed to do.  

In January 1984, the applicant was advised by the Military Personnel Center (MILPERCEN) that he could not qualify for voluntary recall to active duty as a commissioned officer because he could not meet the statutory requirement that commissioned officers be able to complete 20 years of active Federal commissioned service before reaching age 55.  

On 16 May 1984, ARPERSCOM advised the applicant that the time he served as a CPT/0-3 in the USAR was considered “Defacto” service and since he had not accepted the offer to revalidate his commission he no longer held an officer status in the USAR.  The basis for this determination was that the applicant had elected to revert to his former enlisted status and enter active duty in an AGR status after his original appointment to CPT/0-3 was voided and because when he was offered the opportunity to revalidate his original appointment to CPT/0-3 he elected not to do so.

On 12 September 1984, a panel of this Board, the Army Board for Correction of Military Records (ABCMR), denied the applicant’s request that he be allowed to remain on active duty in an AGR status as a CPT/0-3 and that he be credited with time served as a CPT/0-3 and be allowed to retire in that grade upon the completion of 30 years of active duty.  That ABCMR panel concluded that the revocation of the applicant’s original  appointment to CPT/0-3 was proper and accomplished in accordance with Public Law.  

The 1984 ABCMR decisional document also indicated that the applicant, at the time his commission was originally voided, had been advised of the pending remedial action being taken to possibly restore his CPT/0-3 appointment and still elected to revert to his former enlisted status with a concurrent call to active duty in an AGR status.  Further, the ABCMR panel determined that the applicant had failed to accept the opportunity to revalidate his original appointment to CPT/0-3 when offered and therefore, no longer held any commissioned status in the USAR at that time. 

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 12 sets policies and procedures for voluntary retirement of soldiers because of length of service.  Paragraph 12-3b states, in pertinent part, that retirement will be in the regular or reserve grade the soldier holds on the date of retirement as directed in Title 10 of the United States Code, section 3961 (10 USC 3961).  

Paragraph 12-6 (Advancement on the Retired List) contains guidance on the advancement of soldiers on the Retired List.  It states, in pertinent part, that retired soldiers are entitled to, when their active service plus service on the retired list totals 30 years, to be advanced on the retired list to the highest grade in which they served on active duty satisfactorily. 

Title 10 the United States Code, section 1370 provides the legal authority for the assignment of commissioned officer retired grade.  It states, in pertinent part, that in order to be eligible for voluntary retirement under any provision of this title a commissioned officer of the Army holding the rank and pay grade of CPT/0-3  must have served on active duty in that grade for not less than six months in order for that service to qualify for satisfactory service for retirement purposes. 

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.  The Board concurs with the original 1984 ABCMR decision to deny relief in this case and agrees with the conclusions rendered in that original decisional document.  The revocation of the applicant’s appointment to CPT/0-3 was proper and accomplished in accordance with Public Law.  In addition, he voluntarily elected to revert to his former enlisted status and to serve in that status until his REFRAD on 31 December 1988 and placement on the Retired List on 1 January 1989.  

2.  The evidence or record shows that the applicant was properly placed on the Retired List in the rank and pay grade of SGM/E-9, which is the rank he held on the date of his REFRAD, based on his voluntary retirement in an enlisted status under the provisions of chapter 12 of Army Regulation 635-200.  
3.  Given the applicant’s service in the rank and pay grade of CPT/0-3 was declared “Defacto” service and the applicant held no commissioned officer status in the USAR at the time of his retirement, there is no basis for his advancement to CPT/0-3 on the Retired List.  

4.  In addition, even had the applicant’s active duty commissioned service not been declared null and void, his active duty service as a CPT/0-3 consisted of only 4 months and 21 days, which by law would not have been sufficient for a satisfactory service determination.  The law requires a commissioned officer in the rank of CPT/0-3 to serve on active duty for at least 6 months in order for that service to considered satisfactory for retirement purposes.  

5.  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.

6.  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

__gp____  __alr____  __clg____  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000036295	
SUFFIX		
RECON	1984/09/12	
DATE BOARDED	2000/08/24	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1988/12/31	
DISCHARGE AUTHORITY	AR 635-200 C12	
DISCHARGE REASON	Retirement	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  319	131.0900	
2.		
3.		
4.		
5.		
6.