MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  1 March 2001
	DOCKET NUMBER:  AR2000049295

	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 H. Kern		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Mr. Richard T. Dunbar		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 his records be corrected to show his correct Mandatory Retirement Date (MRD).

APPLICANT STATES: That he was involuntarily retired on 31 October 1997 for maximum service, which was not computed correctly.  He contends his MRD should have been 31 July 1998, based on the date he was appointed in the Regular Army (RA) (28 July 1968).  He provides copies of extracts from Title 10, United States Code, section 611, 634 and 3287, Army Regulation 600-8-24 (Officer Transfers and Discharges) and a letter from the Total Army Personnel Command (PERSCOM) in support of his request.

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

During the period 2 November 1966 and 2 October 1967 (11 months and 1 day), he served on active duty in an enlisted status.

On 3 October 1967, he entered active duty as a second lieutenant in the Army Reserve.  He completed his required training and was awarded military occupational specialty 1193 (Artillery Officer).  On 3 October 1968, 3 October 1969, and 1 October 1978, he was promoted to first lieutenant, captain, and major, AUS, respectively.

On 7 October 1980, the Army Military Personnel Center Order 120-2-A-222 announced the applicant’s RA appointment and indicated his date of rank and basic date would be announced after the executed oath of office.

On 8 June 1981, MILPERCEN Order 87-1 announced the applicant’s permanent RA grade of captain with a date of rank of 28 July 1975 and a basic date of       28 July 1968.

On 30 October 1997, in response to his request for a legal opinion concerning his MRD, the Chief Retirements and Separation Branch, Total Army Personnel Command advised him that he was commissioned on 3 October 1967.  He turned 21 years of age on 28 July 1968.  His assertion that the period from          3 October 1967 through 28 July 1968 is not creditable service for the purpose of calculating his MRD is incorrect.  Public Law 96-513 (1981), the Defense Officer Personnel Management Act (DOPMA), section 624, provides that all pre-DOPMA and post-DOPMA service is computed together in the determination of mandatory retirement.  The two statues upon which he relied on were repealed by Public Law 96-513 and do not apply to the calculation of his MRD.  The PERSCOM Command Judge Advocate rendered this opinion. 

On 31 October 1997, he was honorably separated in the rank of colonel from active duty under Army Regulation 600-8-24 (Officer Transfers and Discharges) and placed on the retired list the following day.  His separation documents show he had 30 years and 28 days creditable service as a commissioned officer and 11 months and 1 day creditable service as an enlisted man.

Title 10, section 611, chapter 36 (Promotion, Separation, and Involuntary Retirement of Officers on the Active-Duty List), (Title VI – Transition Provisions) discusses “Regular Officers serving in a higher temporary grade below lieutenant general of recommended promotion to a higher grade.”  Further, (Years of Service for Involuntary Retirement or Discharge) indicates “In determining whether any officer … who was on active duty on the day before the effective date of this act [Sept. 15, 1981] is subject to involuntary retirement or discharge under chapter 36 of title 10 USC [this chapter], as added by this Act, the years of service of the officer for such purposes shall be computed by adding – (1) the amount of service creditable to such officer on the day before the effective date of this Act [Sept. 15, 1981] for the purpose of determining whether the officer is subject to involuntary retirement or discharge; and (2) all subsequent active commissioned service of such officer.

Title 10, section 634 (Retirement for years of service: regular colonels and Navy captains) indicates that “each officer of the Regular Army, Regular Air Force, or Regular Marine Corps who holds the regular grade of colonel, and each officer of the Regular Navy who holds the regular grade of captain, who is not on a list of officers recommended for promotion to the regular grade of brigadier general or commodore, respectively, shall, if not earlier retired, be retired on the first day of the month after the month in which he completes thirty years of active commissioned service.” 

Title 10, section 3287 (Commissioned officers: original appointment; service credit) discusses the determination of grade, position on a promotion list, seniority in his grade in the RA, and eligibility for promotion of a person originally appointed in a commissioned grade in the RA.  

Army Regulation 600-8-24, paragraph 6-26 (Service for mandatory retirement) indicates “Service for mandatory retirement for commissioned officers who did not serve on AD prior to 15 September 1981 is active Federal commissioned service.  Service for commissioned officer on AD on 14 September 1981 is active commissioned service in the RA on and after 15 September 1981 plus the amount of service creditable to the officer on 14 September 1981 for the purpose of determining whether the officer is subject to involuntary retirement.”

Army Regulation 600-8-24, Section VIII (Process Mandatory Retirement Due to Maximum Service), paragraph 6-28 (Rules for processing mandatory retirement due to maximum service), c. “Unless earlier retired, an RA colonel (not on a list of officers recommended for promotion) shall, if not earlier retired, be retired on the first day of the month after the month in which he or she completes 30 years of active commissioned service (10 USC 634).”

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 evidence of record clearly shows that the applicant’s commissioned service has been properly computed; therefore there is no error or injustice in his records.  All of his commissioned service, before and after the 1981 legislation, counts for mandatory service for retirement.

2.  In response to the applicant’s request for a legal review, the PERSCOM Command Judge Advocate’s review was provided to him on 30 October 1997, and supports the foregoing discussion. 

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

__jk___  __cg_____  ___rd_____  DENY APPLICATION

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

INDEX

CASE ID	AR2000049295	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010301	
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         1.113	MRD	
2.		
3.		
4.		
5.		
6.