MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            29 June 2000
	DOCKET NUMBER:   AR2000038027

	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:

	Ms. JoAnn H. Langston		Chairperson	
	Mr. John N. Slone		Member	
	Mr. Melvin H. Meyer		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 promoted to the rank of Colonel/O-6 (COL/0-6) on the retired list, effective 1 December 1995.  

APPLICANT STATES:  In effect, that he was selected for promotion to COL/0-6 by the 1990 Reserve Component (RC) COL/0-6 promotion selection board.  At the time he was serving as an Army National Guard (ARNG) Lieutenant Colonel (LTC/O-5), on active duty, in an Active Guard/Reserve (AGR) status.  He claims that he was informed by the National Guard Bureau (NGB) that he would remain on the promotion list until he was promoted or retired from active duty.  He never declined the promotion to COL/0-6 and he subsequently retired from active duty on 31 October 1994 in the rank of LTC/0-5.  He further states that he recently reviewed his military documents and discovered that he should have been promoted to the rank of COL/0-6 based on the guidance contained in paragraph 2 of his promotion eligibility letter.  This guidance indicated that the effective date of his promotion would be the later of the following dates: the date shown after item A of the letter, which was 9 November 1990; the date Federal recognition is extended in the higher grade; or the date following the date Federal recognition is terminated in his current Reserve grade.  In addition, he comments that his Federal recognition was withdrawn on 31 November 1995, and therefore, he should have been advanced to COL/0-6 on the retired rolls as of 1 December 1995.  He states that he only recently made the correlation between the promotion eligibility letter and his retirement orders and he was never counseled in regard to this matter. 

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

On 21 December 1990, a promotion memorandum, pertaining to the applicant, was published by the Army Reserve Personnel Command (ARPERSCOM), 
St. Louis, Missouri.  This document indicated that the applicant had been selected for promotion to the rank of COL/0-6.  It also verified that the effective date of his promotion would be the later of the following dates:  the date shown after Item B of the promotion memorandum, which was 9 November 1990; the date Federal recognition is extended in the higher grade; or the date following the date Federal recognition is terminated in his current Reserve grade.  

The record also shows that, subsequent to the applicant’s selection for promotion to COL/0-6, he continued to serve in an AGR LTC/O-5 position until he requested voluntary early retirement, under the provisions of Public Law 102-484.  This law allowed commissioned officers serving on active duty to voluntarily request early retirement if they met all the eligibility requirements for a 20 year retirement and had completed at least 15 years of active Federal service as of 31 August 1993.  

On 20 September 1994, the applicant’s early retirement was approved for 
31 October 1994, via Orders Number 34-1, issued by the NGB.  This order also directed his placement on the retired list, in the rank of LTC/0-5, effective 
1 November 1994.  His order also indicated that his Federal recognition was being withdrawn, effective 31 November 1995.  However, he was immediately transferred to the United States Army Reserve (USAR) Control Group, Retired Reserve, effective 1 November 1994.  Therefore, he never actually served on active duty, or in the USAR Ready Reserve, in a rank higher than that of 
LTC/0-5, which was the rank in which he was placed on the retired list. 

The record includes a NGB Form 22 (Report of Separation and Record of Service) which indicates that the applicant resigned from the ARNG and transferred to the USAR Control Group Retired Reserve on 31 October 1994, in the rank of LTC/0-5.  This document shows that he had completed a total of 
26 years, 5 months, and 4 days of total service for pay.  

There is also a DD Form 214 (Certificate of Release or Discharge From Active Duty) on file.  This document shows that on 31 October 1994, while serving on active duty in an AGR status, the applicant was REFRAD in the rank of LTC/0-5 and on 1 November 1994, he was placed on the retired list in that rank.  The authority for his voluntary early retirement was provided by Public Law 102-484.  The record contains no evidence that the applicant ever satisfactorily served on active duty in the rank and pay grade of COL/0-6.

Title 10 of the United States Code, section 1370 (10 USC 1370) provides the legal authority for the grade to which a member is entitled to be placed on the retired list upon voluntary retirement for length of service.  It states, in pertinent part, that a commissioned officer of the Army shall, except as provided in paragraph (2), be retired in the highest grade in which he served on active duty satisfactorily for not less than six months.  Paragraph 2 stipulates 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.  

Title 10 of the United States Code, section 3964 provides the legal authority for advancement on the retired list.  However, this provision of law is only applicable to warrant officers of the Army; enlisted members of the Regular Army; and Reserve enlisted members of the Army who, at the time of retirement, are serving on active duty (or, in the case of members of the ARNG, on full-time National Guard duty), and only then when it can be shown that they satisfactorily served in that higher grade while on active duty.  This provision of the law provides no legal authority to advance commissioned officers of the Army, the USAR, or the ARNG on the retired list. 

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 noted the applicant’s claim that he should have been promoted to the rank of COL/0-6 on 31 November 1995 and advanced to that grade on the retired list on 1 December 1995.  However, the Board concluded there was no basis for providing the requested relief in this case. 

2.  By law, commissioned officers retire at the highest rank in which they satisfactorily served.  In order to meet the satisfactory service provisions of the law and be eligible for voluntary retirement, 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.  The record shows that the highest grade in which the applicant satisfactorily served on active duty was LTC/0-5, and that he was properly placed on the retired list in that rank.  Therefore, the Board concluded his promotion to the rank of COL/0-6, subsequent to his being placed on the retired list as a LTC/0-5, is not appropriate.  

3.  In addition, the law only provides authority for advancement on the retired list for warrant officers and enlisted members of the Army.  The law contains no provision allowing for the advancement of commissioned officers on the retired list.  Therefore, the Board concluded there was no legal authority for advancing the applicant to the rank of COL/0-6 on the retired list.  

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

__mm___  __jhl____  __js_____  DENY APPLICATION

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

INDEX

CASE ID	AR2000038027	
SUFFIX		
RECON		
DATE BOARDED	2000/06/29	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1994/10/31	
DISCHARGE AUTHORITY	AR 635-100 C4	
DISCHARGE REASON	Voluntary Early Retirement	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  310	131.0000	
2.		
3.		
4.		
5.		
6.