IN THE CASE OF:	  

		BOARD DATE:	  17 April 2012

		DOCKET NUMBER:  AR20110015618 


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 retirement pay as a captain.

2.  The applicant states he served in the U.S. Army Reserve (USAR) as an officer while serving in the Regular Army (RA) as a noncommissioned officer (NCO).  He should be retired as an officer because of his dual status.  After 30 years of total service he should be advanced to captain, and receive retired pay at that rank.  Specifically, he contends that the governing regulation, Army Regulation 600-38 (Dual Component Personnel Management Program), does not require active duty service. 

3.  The applicant provides a 27 November 1990 memorandum promoting him to captain in the USAR, officer evaluation reports (OERs) for periods ending 31 January 1990, 11 July 1983 and 11 July 1980.

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 enlisted in the RA in October 1967 and was discharged in August 1970.  Following about a year in the USAR and a few months in the Army National Guard, he re-joined the Regular Army in March 1972 and became a career NCO.  

3.  The applicant applied for a USAR commission under the dual component program.  In March 1979, he accepted an appointment as a USAR
2nd lieutenant.  Thereafter; he performed duties as both an active duty NCO and as a USAR officer.

4.  On 31 March 1992 the applicant retired from active duty as a master sergeant, pay grade E-8.  He had 20 years and 12 days of service during this period on continuous active duty.

5.  Army Regulation 600-38 sates in:

	a.  paragraph 5.  Concept.  Mobilization requirements of DA for officers must be met swiftly through procurement of trained commissioned and warrant officers.  Members presently on active duty afford ready assets during times of rapid expansion of the Active component.  They can be mobilized to assume greater responsibilities quickly.  Career planning and management of dual component members are vital to the use of these assets in time of war or national emergency.

	b.  paragraph 26. Retirement.  Various Laws govern retirement of dual component members.  Warrant officers or enlisted members may retire voluntarily in a commissioned officer status (Title 10, U.S. Code, section 3911) if they meet both of the following conditions:

		(1) They have completed 10 years of active commissioned service in their overall total of 20 years, active Federal service, and

		(2) They hold a USAR Commission at the time of retirement.


DISCUSSION AND CONCLUSIONS:

1.  The governing regulation states that dual component Soldiers may retire as officers if they have 10 years of active commissioned service in their overall total of 20 years, active Federal service.

2.  Clearly the wording, "active Federal service" makes it clear that this means active duty service.  Furthermore the wording, "Active component" used in the Concept paragraph reinforces this meaning.

3.  In view of the foregoing there is no basis for granting the requested relief.

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)                                         AR20110015618



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ABCMR Record of Proceedings (cont)                                         AR20110015618



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