RECORD OF PROCEEDINGS

	IN THE CASE OF:      I

	BOARD DATE:           18 December 2003                   
	DOCKET NUMBER:   AR2003088788

	I certify that hereinafter is recorded the true and complete record of the proceedings 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. Raymond V. O’Connor		Chairperson	
	Mr. James E. Anderholm		Member	
	Ms. Yolanda Maldonado		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests, in effect, that he be advanced to the rank and pay grade of colonel/0-6 (COL/0-6) on the Retired List.  

2.  The applicant states, in effect, that he was serving in the rank of COL at the time of his retirement.  He further states that his total active duty time plus time on the Retired List now is greater than 30 years; therefore, he requests to be advanced on the Retired List.   

3.  The applicant provides a copy of his separation document (DD Form 214), his retirement orders, and his COL promotions orders in support of his application.  

CONSIDERATION OF EVIDENCE: 

1.  The applicant’s record shows that he was released from active duty (REFRAD) for the purpose of retirement on 31 May 1990.  

2.  Orders Number S67-16, dated 6 April 1990, issued by the Total Army Personnel Command (PERSCOM), directed that the applicant be REFRAD on 
31 May 1990 and that he be placed on the Retired List the following day.  These orders confirm that the applicant’s retired grade of rank was LTC/0-5.  

3.  The applicant provides a copy of orders number 53-005, dated 8 April 1990, issued by PERSCOM.  These orders authorized the applicant’s promotion to COL/0-6 on 3 May 1990.  The instructions contained on these orders specified that the promotion was not valid and would be revoked if the officer concerned was not in a promotable status on the effective date of promotion.  

4.  The DD Form 214 issued to the applicant on 31 May 1990, the date he was REFRAD for retirement, confirms that he held the rank and pay grade of LTC/0-5 on that date and that he had completed a total of 20 years, 2 months, and 
23 days of active military service.  

5.  Army Regulation 600-8-24 prescribes the policy for officer transfers from active duty to the Reserve Component and discharge functions for all officers on active duty for 30 days or more.  Chapter 6 contains the policy for officer retirement.  It states, in pertinent part, that commissioned officer must serve on active duty for three years in grade to retire in rank above major and below lieutenant general, as required by Title 10 of the United States Code, section 1370.  

6.  Title 10 of the Untied States Code, section 3964 provides the legal authority for advancement to higher grade on the Retired List  after 30 years of service for warrant officers and enlisted members.  This provision of law is not applicable to retired commissioned officers. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request that he be advanced to the rank and pay grade of COL/0-6 on the Retired List because his active duty service and time on the Retired List now is greater than 30 years was carefully considered.  However, there are no provisions of law or regulation that provide for the advancement of commissioned officers on the Retired List.  

2.  Although it appears the applicant was promoted to COL/0-6 the month prior to his retirement, he did not remain on active duty to complete the three year service in grade requirement necessary to retire in that rank and pay grade.  

3.  Advancement on the Retired List, as provided for in Title 10 of the United States Code, section 3964, is applicable only to retired warrant officers and enlisted personnel.  By law, commissioned officers must serve on active duty for three years in grade to retire in a rank above major and below lieutenant general. 

BOARD VOTE:

________  ________  ______  GRANT RELIEF 

________  ________  ______  GRANT FORMAL HEARING

__RA__  ___YM_  __RO____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

		Raymond V. O’Connor
		 			      CHAIRPERSON

INDEX

CASE ID	AR2003088788	
SUFFIX		
RECON		
DATE BOARDED	2003/12/18	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1990/05/31	
DISCHARGE AUTHORITY	AR 600-8-24 	
DISCHARGE REASON	Retirement 	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  306	129.0400	
2.		
3.		
4.		
5.		
6.