IN THE CASE OF: BOARD DATE: 3 September 2008 DOCKET NUMBER: AR20080005854 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, placement on the Retired List in the rank/pay grade of colonel (COL)/O-6. 2. The applicant states, in effect, that he was released from Active Guard Reserve (AGR) status as a lieutenant colonel (LTC)/O-5 after 20 years of active Federal service effective 15 September 2002. He continued immediately in Active Duty Special Work Status (ADSW) because his State leadership asked him to defer his retirement to continue on ADSW. He was then mobilized under Title 10 to active duty status from 19 July 2003 through 16 September 2004. Upon his return from mobilization, he was asked again to serve in a full-time status, only the State did not have a colonel (COL)/O-6 AGR controlled grade. He was also asked to defer his AGR retirement again and serve in a full-time technician status. He was promoted to COL on 27 October 2004 and served more than 3 years as a Reserve Officer while at the same time serving as a full-time technician. Full-time technician status is the equivalent of being in an AGR status. His total active service is 22 years, 10 months, and 15 days. His total service for retirement percentage purposes is 25 years, 7 months, and 18 days. 3. The applicant provides copies of his promotion orders; copies of his various DD Form 214 (Certificate of Release or Discharge from Active Duty); and a copy of his Army National Guard (ARNG) Retirement Points History Statement, dated 12 December 2007. CONSIDERATION OF EVIDENCE: 1. The applicant was a member of the Minnesota ARNG. 2. On 1 January 1999, the applicant was promoted to LTC/O-5. 3. The applicant served on active duty from 19 December 1983 through 15 September 2002; on ADSW from 16 September 2002 through 16 July 2003; and from 19 July 2003 through 26 September 2004, in support of Operation Joint Forge. 4. On 27 October 2004, he was promoted to COL/O-6. 5. His last period of active duty was from 1 April 2007 through 31 January 2008 as a COL/O-6, a period of 10 months. 6. On 31 January 2008, the applicant retired with sufficient service for retirement. 7. In processing this case, an advisory opinion was obtained from the Chief, Personnel Division, National Guard Bureau, who recommended disapproval of the applicant's request because he served for a period of less than 1 year on active duty as a COL/O-6. Further, time spent in the technician program does not count towards the time spent on active duty as a COL O-6. Title 20, U.S. Code, section 10216, states in pertinent part, that a military technician (dual status) is a Federal civilian employee and shall be authorized and accounted for as a separate category by civilian employees. 8. On 5 June 2008, the applicant was provided a copy of the advisory opinion for comment and/or rebuttal. To date, he has not responded. 9. Army Regulation 600-8-24, chapter 6, pertains to nondisability retirement of active duty list (ADL) commissioned and warrant officers on active duty to include AGR commissioned and warrant officers who have 20 years or more of active duty Federal service. A commissioned officer must serve on active duty for 3 years in grade to retire in rank above major and below lieutenant general. DISCUSSION AND CONCLUSIONS: 1. In view of the circumstances in this case, the applicant is not entitled to a correction to his records to show he retired in the rank/pay grade of COL/O-6. He has not shown error, injustice, or inequity for the relief he now seeks. He has provided no evidence showing he satisfactorily held the rank/pay grade of COL/O-6 more than 3 years while he served on active duty prior to his transfer to the Retired List. 2. The evidence shows the applicant was promoted to LTC/O-5 in the Army National Guard. He served on active duty from 19 December 1983 to 15 September 2002; from 16 September 2002 to 18 July 2003; and from 19 July 2003 to 26 September 2004. He was promoted to COL/O-6 effective 27 October 2004. He served for a period of 10 months on active duty after his promotion to COL/O-6. He is therefore not entitled to amendment to his retired rank/pay grade of COL/O-6. 3. Further, the evidence shows the applicant's period of active duty from 16 September 2002 to 18 July 2003 was ADSW. In accordance with Title 10, this time spent on active duty does not count towards time on active duty as a commissioned officer. 4. There is an insufficient evidentiary basis to support granting the requested relief. Therefore, there is no error in the applicant's records and he properly retired in the appropriate rank/pay grade of LTC/O-5. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __xxx___ __xxx___ __xxx___ 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. XXX ______________________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20080005854 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20080005854 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1