IN THE CASE OF: BOARD DATE: 6 November 2008 DOCKET NUMBER: AR20080009387 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, that his records and separation document be corrected to show he was recalled to active duty (AD) in the grade of first lieutenant (1LT) vice sergeant first class (SFC/E-7). He further requests that his records be corrected to show he was promoted to captain (CPT) and that he receive any back pay and allowances he may be due as a result of this correction. 2. The applicant states, in effect, that in 1991 he was recalled to AD in support of Operation Desert Storm. He claims that although he had been retired in the grade of 1LT, he was recalled to AD in the grade of SFC, and that upon his placement on AD, he informed his Personnel Officer that his orders should reflect his grade as 1LT. However, this official refused to have his orders corrected and stated that the pay in the two grades was very close and therefore made no difference. He also states that had he been serving in his grade of 1LT he would have earned the time in grade required for promotion to CPT, and he believes that he should be promoted to that grade in the interest of fairness and that his monthly retired pay should be increased accordingly. He further states it would be appropriate for him to receive all back pay and allowances due him as a result of these corrections. 3. The applicant provides a self-authored statement, separation document (DD Form 214), and military retired identification (ID) card in support of his application. CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant's record shows he initially enlisted into the Regular Army (RA) and honorably served from 8 October 1949 through 20 August 1952. 3. On 21 August 1952, the applicant was transferred to the United States Army Reserve (USAR). He honorably served in an active status until 16 September 1956, at which time he was discharged for the purpose of accepting a commission. 4. On 17 September 1956, the applicant was commissioned a Reserve Commissioned Officer in the USAR in the grade of second lieutenant (2LT) and on 16 September 1959, he was promoted to 1LT. 5. On 14 November 1962, the applicant voluntarily tendered his resignation as a Reserve Officer of the Army, and on 3 December 1962, he was honorably discharged from the Army Reserve Control Group under the provisions of paragraph 8a(2), Army Regulation 140-175, by reason of resignation. 6. The record shows the applicant served in an enlisted status in the USAR from 31 August 1964 through 8 September 1967, and again from 12 May 1975 through 11 May 1980. On 6 October 1980, the applicant enlisted in the USAR in an enlisted status and began his last period of military service. 7. The applicant's record contains a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter), dated 12 May 1987, which informed him he had completed the necessary time to qualify for retired pay at age 60 upon application. 8. Headquarters, Fifth United States Army, Orders 177-102, dated 14 September 1987, transferred the applicant to the USAR Control Group (Retired), in the rank of SFC, effective 14 September 1987. 9. United States Army Reserve Personnel Center, St. Louis, MO Orders M-01-540244, dated 24 January 1991, ordered the applicant to AD in a retired status in the grade of SFC in support of Operation Desert Storm. 10. On 27 September 1991, the applicant was honorably reverted to retired status by reason of expiration term of service (ETS) and transferred back into the Retired Reserve in the grade of SFC. The DD Form 214 he was issued at the time confirms he completed a total of 8 months of active military service and that he held the rank of SFC on the date of his release from active duty. 11. Army Regulation 601-10 (Management and Mobilization of Retired Soldiers of the Army) provides policy and procedures for the management and mobilization of retired soldiers of the Army. Paragraph 2-5, states in pertinent part that Retired Soldiers ordered to AD will be ordered to AD in their current grade on the retired list unless otherwise directed by HQDA. A retired Soldier who previously served on AD satisfactorily, as determined by the Secretary of the Army, in a grade higher than that Soldier's retired grade, may be ordered to AD in the highest grade held satisfactorily. Retired military personnel recalled to AD in retired status are not eligible for promotion. 12. Title 10 of the United States Code, section 12307 (10 USC 12307), states in pertinent part, that a member in the Retired Reserve may, if qualified, be ordered to active duty without his consent. A member of the Retired Reserve who is ordered to active duty or other appropriate duty in a retired status may be credited under chapter 1223 of this title with service performed pursuant to such order. A member in a retired status is not eligible for promotion (or for consideration for promotion) as a Reserve. 13. Title 10 USC, section 12301(d) states in pertinent part that an authority designated by the Secretary concerned may order a member of a Reserve Component under his jurisdiction to active duty; to retain him on active duty; or to retain him on active duty, with the consent of that member at any time. However, a member of the Army National Guard of the United States or the Air National Guard of the United States may not be ordered to active duty under this subsection without the consent of the governor or other appropriate authority of the State concerned. 14. Title 10 of the United States Code, section 12731 (10 USC 12731) provides the legal authority and age and service requirements for members eligible for non-regular retirement. It states, in pertinent part, that members who have completed at least 20 years of creditable service are entitled to receive retired pay, upon application, when they reach age 60; and 10 USC 1406 provides the legal authority for establishing the final basic pay for members who entered military service before September 1980. This provision of the law states, in effect, that member's eligible for non-regular retired pay at age 60 are entitled to receive that pay based on the highest pay grade they held satisfactorily at any time during their military service. DISCUSSION AND CONCLUSIONS: 1. The applicant's contention that his records should be corrected to show that he was recalled to active duty in the grade of 1LT, that he be promoted to CPT, and that he receive all back pay he is entitled to based on this correction was carefully considered. However, there is insufficient evidence to support this claim. 2. By law, members eligible for non-regular retired pay at age 60 are entitled to receive that pay based on the highest pay grade they held satisfactorily at any time during their military service. The record clearly establishes that the highest grade the applicant successfully served on active duty was 1LT, and that he was properly placed on the Retired List and received retired pay in that grade upon being placed on the Retired List at age 60 in accordance with the governing law. 3. However, the evidence of record confirms that in 1987, the applicant was transferred to the Retired Reserve in the grade of SFC. It also shows he was recalled to active duty in the rank of SFC in January 1991. A retired Soldier recalled to AD will normally be ordered to AD in their current grade on the retired list. In the applicant's case, that grade was SFC. While a Soldier who had previously held a higher grade may be ordered to active duty in the higher grade, it appears that the Secretary made a considered decision that the applicant could best be recalled to AD and utilized in a SFC position, and his AD service was performed in that grade. 4. The record also verifies that at the time of his release from AD and transfer back to the Retired Reserve, the applicant still held the rank of SFC. As a result, there is an insufficient evidentiary basis to support correcting his record to show he performed his active duty service as a 1LT. 5. The evidence of record further confirms that the applicant was properly granted the retired grade of 1LT when he was placed on the Retired List at age 60, in accordance with the governing law. As a result, given this is the highest grade he held and in which he satisfactorily served. Even if he had been recalled to AD as a 1LT, retiree recalls are not eligible for promotion. Therefore, there is insufficient evidentiary basis to support his promotion to CPT or to grant him additional retired pay and allowances. 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. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ___x_____ 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. _________x_____________ 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) AR20080009387 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20080009387 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1