IN THE CASE OF: BOARD DATE: 28 June 2012 DOCKET NUMBER: AR20110021271 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 placement on the Retired List in the rank of lieutenant colonel (LTC)/O-5. 2. The applicant states: a. He was incorrectly retired in the rank of sergeant first class (SFC)/E-7. b. His retired rank should be corrected to LTC. c. In accordance with Army Regulation 135-180 (Qualifying Service for Retired Pay Nonregular Service) his Reserve retired pay should be based on the rank of LTC (his highest grade satisfactorily held for non-regular service). d. He satisfactorily served more than 20 years, active and Reserve. He served in the Reserve component for more than the required minimum years (last 8 years) before retiring. Pay is based on the highest grade satisfactorily held at any time during an individual's entire period of service, other than in an inactive section of a Reserve component or retired section not on active duty. e. He held the rank of LTC and was paid at that rank more than 4 years, exceeding the minimum statutorily required time. His current retired pay computation as an E-7 does not correctly reflect his pay based on the current military pay schedule for that grade. Based on converted points to years and 2.5% of annualized active duty pay, his pay should be also be adjusted retroactively to 24 August 1999, if in error. 3. The applicant provides 19 attachments outlined in his cover sheet. 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 was born on 24 August 1939. He was commissioned a second lieutenant in the U.S. Army Reserve (USAR) on 16 June 1963. He was promoted to major (MAJ)/O-4 effective 16 June 1972. 3. A memorandum, dated 5 October 1979, shows he was selected for promotion to LTC with a projected promotion eligibility date of 15 June 1980. The memorandum stated he had to complete the Command and General Staff Officer Course prior to the third anniversary of the effective date of his promotion or be subject to removal from an active status. 4. On 4 June 1984, he was honorably discharged from the USAR because he did not meet the educational requirements for promotion to LTC (he did not complete the Command and General Staff Officer College within the given time frame). 5. After a break in service, he enlisted in the USAR in the rank of SFC/E-7 on 23 June 1989. 6. On 17 February 1995, he received his notification of eligibility for retired pay at age 60. 7. On 24 June 1995, he was reassigned to the Retired Reserve in the rank of SFC due to maximum years of service. The highest rank held shown on his reassignment orders is LTC/O5. 8. His retirement orders, dated 17 June 1999, show he was placed on the Retired List in the rank of SFC/E-7 effective 24 August 1999. 9. His Certificate of Retirement shows his rank as LTC. 10. Title 10, U.S. Code, section 1406(b)(2) states non-regular retired pay is based upon the highest grade satisfactorily served at anytime in the Armed Forces. 11. Title 10, U.S. Code, section 1370 provides the legal authority for retirement in the highest grade satisfactorily held for commissioned officers. It states, in pertinent part, that a commissioned officer who retires under any provision of law shall be retired in the highest grade in which they satisfactorily served on active duty, as determined by the Secretary of the military department concerned, for not less than six months. DISCUSSION AND CONCLUSIONS: 1. The applicant wants his retired rank changed to LTC. 2. Evidence shows he served more than three years in an active status as a USAR LTC. However, because he had not completed Command and General Staff College prior to the third anniversary of his effective date of promotion he was removed from an active status in the USAR as required by Army regulation. To complete the years he required to receive a 20-year letter, he enlisted as a SFC. Since his eligibility for receipt of non-regular retired pay, he has received retired pay as an SFC. 3. Since there is no evidence of record which shows his service in the rank of LTC was not satisfactory, and in accordance with the governing regulations, his military records should be corrected to show he was placed on the Retired List as a LTC/O-5 effective 24 August 1999. BOARD VOTE: ____X___ ___X____ ____X___ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing he was placed on the Retired List in the rank of LTC/O-5 effective 24 August 1999 and paying him retired pay due as a result of this correction. _______ _ __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) AR20110021271 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20110021271 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1