MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           12 April 2000                   
	DOCKET NUMBER:   AR1999031587

	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.

	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Robert G. Hinkle		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. James P. Stueve		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 he retired as a lieutenant colonel (LTC) with back pay, or to show that he retired as a major (MAJ), and personal appearance before the Board.

APPLICANT STATES:  That his records clearly show that he was on active duty from July 1980 through June 1981 as a MAJ.  He was an LTC on 31 August 1989 and he should have retired as a lieutenant colonel on that date.  In addition, there were major errors on his DA Form 3713-E, Data for Retired Pay –item 7 should have read 11B; item 17 should have read 31 August 1989, not                 1 November 1988; item 18 should have read “AUS,” not “USAR;” item 31 should have read “yes;” and item 33 should have read “yes.”

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

He served in the U. S. Navy from 13 August 1958 through 10 August 1962 and the U. S. Navy Reserve from 11 August 1962 through 16 July 1964.  He enlisted in the Army National Guard on 17 July 1964, the U. S. Army Reserve (USAR) on 2 December 1964, back in the Army National Guard on 17 May 1965, and back in the USAR on 20 November 1965.  He enlisted in the Regular Army on            10 August 1966.  He was commissioned out of Officer Candidate School and entered active duty on 8 February 1969.  He was released from active duty on    15 December 1972 as a captain (CPT).

The applicant served in the USAR or the Army National Guard as a commissioned officer from 16 December 1972 until 7 June 1983.  The evidence of record shows that he had one period of active duty from 8 September 1980 through 20 June 1981 during which time he was a USAR MAJ.  (This period was effectuated through 15 separate orders for Active Duty for Training, Active Duty Support, or Annual Training for periods ranging from 2 days to 132 days during which he performed duties with the 91st Division (Training) at Fort Baker, CA.)  He was promoted to LTC on an unknown date and there is no evidence of record to show he served on active duty as an LTC.  He reenlisted in the Regular Army on 7 June 1983 and apparently held dual status as an LTC.  He was placed on the retired list 1 September 1989 as a staff sergeant, E-6.

The available DA Form 3713 shows item 7 as 11B3H, item 17 as 1 September 1989; item 18 as “RA;” item 31 as “yes;” and item 33 as “no.”

On 21 January 1999, the Army Reserve Personnel Command (AR-PERSCOM) advanced the applicant to the rank of CPT on the retired list.  On 25 February 1999, AR-PERSCOM disapproved the applicant’s request for advancement on the retired list to the rank of MAJ and stated that it had been determined that he did not serve on active duty in accordance with section 3964 of Title 10, U. S. Code in the grade of MAJ.

Title 10, U. S. Code, chapter 367 governs retirement for length of service.  Section 3911(a) states that the Secretary of the Army may, upon the officer’s request, retired a regular or reserve commissioned officer who has at least 20 years of service at least 10 years of which have been active service as a commissioned officer. 

Title 10, U. S. Code, chapter 369 governs retired grades.  Section 3961 states that the retired grade of a regular commissioned officer who retires other than for physical disability and the retired grade of a reserve commissioned officer of the Army who retires other than for physical disability or for nonregular service under chapter 1223 of this title, is determined under section 1370 of this title.  Section 3964 provides that warrant officers and enlisted members may, when their active service plus their service on the retired list totals 30 years, be advanced on the retired list to the highest grade in which they served on active duty satisfactorily.  There is no provision for advancing a commissioned officer who retired for other than physical disability on the retired list after the completion of a specific period of service.

Title 10, U. S. Code, section 1370(a)(1) provides that a commissioned officer who retires under any provision of law except chapters 61 (disability) or 1223 (non-regular service) shall, except as provided in paragraph (2), be retired in the highest grade in which he served on active duty satisfactorily for not less than six months.  Section 1370(a)(2)(A) provides that, in order to be eligible for voluntary retirement under any provision of this title in a grade above major, a commissioned officer of the Army must have served on active duty in that grade for not less than three years.  

Title 10, U. S. Code, section 101(d) defines “active duty” to mean full-time duty in the active military service of the United States.  Such term includes full-time training duty, annual training duty, and attendance, while in the active military service, at a school designated as a service school.

Army Regulation 600-39 prescribes policies governing the Army’s Dual Component Personnel Management Program.  This program allows the Department of the Army to quickly meet mobilization requirements through procurement of trained commissioned and warrant officers from enlisted and warrant ranks of the Regular Army.  The concept of the program is to quickly meet the mobilization needs for officers through procurement of trained commissioned and warrant officers.  Current active duty members are ready assets during times of rapid expansion of the Active Army.  They can be mobilized to assume greater responsibilities quickly.  Warrant officers or enlisted members may retire voluntarily in a commissioned officer status provided they have completed 10 years of active commissioned service in their overall total of 20 years active Federal service and hold a USAR commission at the time of retirement.
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 finds no error on the DA Form 3713 (the DA Form 3713-E mentioned by the applicant may have been a worksheet).  Item 7 was corrected as he requested; item 17 is correct as 1 September 1989, the date he was placed on the retired list (he was released from active duty on 31 August 1989); item 18 is correct as “RA;” his retired component (since he retired in his enlisted status); item 31 was corrected as he requested; and item 33 is correct as “no.”

2.  The applicant did not serve at least 10 years active service as a commissioned officer and so is not entitled to have his records corrected to show he retired as a MAJ or LTC.

3.  While the evidence of record shows that the applicant did serve a period of active duty in excess of 6 months in the rank of MAJ prior to his retirement, the 
Board concludes this duty did not meet the definition of “active duty” as provided by Title 10, U. S. Code.  The Board concludes that AR-PERSCOM appropriately advanced him to CPT when his active service plus his service on the retired list reached 30 years.

4.  There is no statutory or regulatory right to a formal hearing.  Formal hearings are granted when the Board determines that a case is so complex or the records so incomplete that only sworn testimony can provide the necessary information.  The Board concludes that this case does not require a formal hearing and so a personal appearance is not appropriate.

5.  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

__rgh___  __bje___  __jps___  DENY APPLICATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR1999031587	
SUFFIX		
RECON		
DATE BOARDED	20000412	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	131.09	
2.		
3.		
4.		
5.		
6.