MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  27 February 2001
	DOCKET NUMBER:  AR2000046568

	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. Lee Cates		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Roger W. Able		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: That her records be corrected to show that her retired grade was changed from Major (MAJ) pay grade 0-4 to Lieutenant Colonel (LTC) pay grade 0-5, as an exception to regulatory guidance.

APPLICANT STATES: In effect, that she failed to complete the required 3 years as a LTC prior to voluntarily requesting separation and retirement for length of service.  

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

During the period 5 November 1975 to 4 November 1978 (3 years), she served on active duty in an enlisted status.

On 5 June 1981, she entered on active duty as a commissioned officer.

Effective 1 July 1997, she was promoted to LTC, Military Intelligence Corps.

On 10 December 1998, she requested separation and placement on the retired list in the rank of LTC (0-5) as an exception to policy and a waiver of her remaining required 12 months time-in-grade.  On 17 February 1999, the Chief, Retirements and Separation Branch, Total Army Personnel Command (PERSCOM) returned her application as not favorably considered.

On 19 March 1999, she resubmitted her request for separation with a time-in-grade waiver; however, this time she requested placement on the retired list in the rank of MAJ (0-4).  On 5 April 1999, the Commanding General, PERSCOM indicated her request for waiver was again not favorably considered; however, her request for placement on the retired list in the rank of MAJ (0-4) was approved.

On 13 October 2000, the Chief, Retirements and Separations Branch, PERSCOM recommended her request be denied.  On two separate occasions a waiver of her retired grade had been requested and twice rejected.  The PERSCOM official noted shortages of officers in her area of consideration, no waivers were given at that time, and that the status of an individual in a given rank does not affect the individual’s eligibility to retire in that rank.

On 23 October 2000, the PERSCOM opinion was furnished to the applicant for her acknowledgement/rebuttal.

On 6 November 2000, the applicant rebutted the PERSCOM opinion.  She explained in detail her personal problems that led to her early separation and retirement.  She explained that her strained marriage, which was subsequently dissolved, was the reason for her request for retirement.

Army Regulation 600-8-24 indicates, in pertinent part, that “Unless there is evidence of fraud, an officer’s retirement under a particular statute exhausts the power of the President and the Secretary of the Army.  The record of Executive action cannot be revoked or modified to make the retirement relate to another statute, even though more than one statute properly applied at the time of retirement.”

Army Regulation 600-8-24 also indicates “Generally, an officer who completes certain formal education or training programs accepts career status, a certain promotion, or a PCS [permanent change of station] and incurs an ADSO [active duty service obligation] (AR350-100).  Normally, an officer must be able to fulfill the ADSO on or before the effective date of retirement.  However, CG, PERSCOM, may grant nonstatutory waivers.  Each request will be on a case by case basis.”  In this case, individuals must serve in the rank of LTC for 3 years in order to be placed on the retired list in that rank.

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, it is concluded:

1.  In both applications, she indicated she had read and understood the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), as to her placement on the retired list without having completed the obligated service she accepted when she accepted her promotion to LTC.   

2.  Regulatory compliance exhausts the power of the President and Secretary of the Army unless there is evidence of fraud.  There is no error or injustice and no evidence of fraud.

3.  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 this requirement.

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

__js___  ___ra_____  __mm___ DENY APPLICATION

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

INDEX

CASE ID	AR2000046568	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010227	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.110	Prom to 05	
2.		
3.		
4.		
5.		
6.