MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           6 March 2003
	DOCKET NUMBER:   AR2003084887

	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. Walter T. Morrison		Chairperson	
	Ms. Linda D. Simmons		Member	
	Mr. Frank C. Jones, II		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 her retired rank be changed from major (MAJ) to lieutenant colonel (LTC).  

APPLICANT STATES:  In effect, she held the rank of LTC at the time of her retirement.  However, because she had not completed the three year promotion service obligation, she was required to retire in the rank of MAJ.  She claims that the requirement was not absolute and was waivable if higher headquarters had wanted to grant the waiver.  She states that she requested a waiver, but was immediately told that one would not be granted.  She also comments that she does not believe that she was ever told why.  She further indicates that had she not deserved to be promoted to LTC, she is sure the promotion selection board would have passed her over.  She states that her service record is impeccable and that she always exceeded standards, and for this reason a waiver is warranted.  She further states that she is making this request now because two years and her time in grade requirement have passed, and she believes her retired rank should now be corrected.  She adds that she served in an enlisted status in both an active and Reserve status for over eight years, and her record as an enlisted soldier was also impeccable.  She asks that the Board now correct her record as of 1 June 2002.  She claims that she does not expect back pay for this action.  She adds that if she had been medically retired, she would have kept her rank and the time in grade requirement would have been waived.  In conclusion, she asks that if her request is not approved, that she be allowed to use the rank of LTC on her military identification (ID) card, and in military functions since she did achieve that rank. 

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

She entered active duty as a commissioned officer on 19 July 1980.  On 
1 October 1993, she was promoted to MAJ and on 1 June 1999, she was promoted to LTC.  

Orders Number 0013, dated 3 February 2000, issued by Headquarters, 
101st Airborne Division (Air Assault) and Fort Campbell, Fort Campbell, Kentucky, authorized the applicant’s REFRAD on 30 April 2000, and directed her placement on the Retired List on 1 May 2000.  These orders show that the applicant had completed a total of 20 years, 11 months, and 7 days of active military service, 25 years, 2 months, and 8 days of service for basic pay purposes, and that her authorized retirement grade was MAJ.  

The record contains no documentation showing that the applicant requested a waiver of her LTC promotion service obligation in connection with her retirement. Further the applicant provides no independent evidence or documentation in regard to a waiver request of this nature.  

Army Regulation 600-8-24 contains the policy and procedure on officer transfers or discharges.  Chapter 6 contains the policy for officer retirements.  It states, in pertinent part, that a commissioned officer must serve on active duty for three years in grade to retire in rank above Major and below lieutenant general (LTG).  

Army Regulation 600-8-29 provides the Army’ officer promotion policy.  Paragraph 1-18 contains the policy for accepting a promotion.  It also provides guidance on the impact of promotion on service obligations and retirement.  It further states, in pertinent part, that an officer who accepts a promotion to a rank of LTC through major general (MG), must serve in that grades satisfactorily for three years prior to voluntary retirement.  However, the President may waive this requirement in individual cases involving extreme hardship or exceptional or unusual circumstances.

Title 10 of the United States Code, section 1370 provides the legal rules for retirement in highest grade held satisfactorily and provides for officers being retired in the highest grade in which he/she served on active duty satisfactorily, as determined by the Secretary of the military department concerned.  It further states, in pertinent part, that in order to be eligible for voluntary retirement under any provision of this title in a grade above major or lieutenant commander, a commissioned officer of the Army, Navy, Air Force, or Marine Corps must have served on active duty in that grade for not less than three years.  except that the Secretary of Defense may authorize the Secretary of a military department to reduce such period to a period not less than two years in the case of retirements effective during the period beginning on October 1, 1990, and ending on December 31, 2001.  The President may waive this requirement in individual cases involving extreme hardship or exceptional or unusual circumstances.  The authority of the President under the preceding sentence may not be delegated. 

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 notes the applicant’s contention that her retired rank should be changed to LTC based on her impeccable record of service and on the fact that the requirement was waivable.  However, the Board finds these factors are not sufficiently mitigating to warrant the requested relief.  

2.  By law and regulation, in order to retire in the rank, a commissioned officer in the grade of LTC must serve on active duty in rank for three years.  At the time of the applicant’s retirement, this service obligation could be waived to two years. 

3.  The evidence of record confirms that the applicant was promoted to LTC on 
1 June 1999, and that she voluntarily retired in the rank of MAJ on 30 April 2000. At the time of her retirement, the applicant had served as a LTC for less than one year.  As a result, she was placed on the Retired List in the rank of MAJ in accordance with the applicable laws and regulations.  The Board finds no error or injustice associated with the applicant’s assigned retired grade of MAJ. 

4.  Notwithstanding the applicant’s outstanding record of service, lacking any evidence showing that an extreme hardship or exceptional or unusual circumstances existed at the time of her retirement that would have warranted a waiver by the President, the Board finds no evidentiary basis on which to grant the requested relief.  

5.  In addition, given the applicant voluntarily elected to retire prior to completing her satisfactory service obligation as a LTC, and because she was authorized a retired grade of MAJ, the Board finds no basis to authorize her to use the rank of LTC while in a retired status.  This decision is made in the interest of fairness and equity to all those who retired under similar circumstances.  

6.  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.  

7.  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

__WTM__  __LDS _  __ FCJ__  DENY APPLICATION 

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

INDEX

CASE ID	AR2003084887	
SUFFIX		
RECON		
DATE BOARDED	2003/03/06	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	2000/04/30	
DISCHARGE AUTHORITY	AR 600-8-24	
DISCHARGE REASON	Retirement 	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  310	131.0000	
2.		
3.		
4.		
5.		
6.