BOARD DATE: 8 December 2016 DOCKET NUMBER: AR20150013683 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x_____ __x______ _x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 8 December 2016 DOCKET NUMBER: AR20150013683 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. BOARD DATE: 8 December 2016 DOCKET NUMBER: AR20150013683 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’s request, in effect, that he be advanced to the rank and pay grade of lieutenant colonel (LTC/O-5) on the Retired List because he has over 30 years of Federal service. 2. He states that he was promoted to the rank of LTC on 1 September 2006 while on active duty, but he was unable to serve on active duty for 3 years. Nonetheless, he contends that he is entitled to the rank of LTC under the provision of Title 10, U.S. Code, sections 3964 and 3992, because he completed over 30 years of Federal service. 3. He provides: * a Letter of Explanation * four DD Forms 214 (Certificate of Release or Discharge from Active Duty) as follows – * U.S. Air Force, effective 23 April 1980 * U.S. Army, effective 9 July 2000 * U.S. Army, effective 31 March 2008 * U.S. Army, effective 31 January 2010 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. Having prior enlisted and commissioned U.S. Air Force service, he accepted a commission as a Reserve officer in the U.S. Army on 18 April 2000 in the rank/pay grade of captain (CPT/O-3). He served through a series of duty assignments and he was promoted to LTC, Army Nurse Corps, effective 1 September 2006. 3. On 4 June 2007, the applicant requested release from active duty and voluntary retirement, effective 31 March 2008, and placement on the Retired List, effective 1 April 2008. He had completed 20 years, 6 months, and 24 days of active Federal service on the requested retirement date. He further acknowledged in paragraph 12 of his request that he would be placed on the Retired List in the rank of major (MAJ/O-4). 4. Orders 204-1308, issued by Headquarters, U.S. Army Maneuver Support Center, Fort Leonard Wood, MO, dated 23 July 2007 (amended by Orders 228-1326, dated 16 August 2007), retired the applicant from active service on 31 March 2008 with placement on the Retired List in the rank of MAJ/O-4, effective 1 April 2008. 5. Orders A-10-819871, U.S. Army Human Resources Command, St. Louis, Missouri, dated 6 October 2008, ordered him to active duty in a retired status for the purpose of serving as a nurse practitioner in the rank of LTC/O-5, in support of Operation Enduring Freedom. He served on active duty from 1 February 2009 to 31 January 2010 (a period of 1 year). 6. The applicant provides a Letter of Explanation wherein he list all of his active and inactive military service in the U.S. Air Force and U.S. Army totaling 30 years. REFERENCES: 1. Army Regulation 600-8-29 (Officer Promotions) states that unless an officer declines a promotion in writing, he or she is considered to have accepted the promotion on the effective date announced in the promotion order. The active duty service obligation is a specific period of active duty an officer must serve before being eligible for voluntary separation or retirement. Officers accepting a promotion to LTC do not incur an additional service obligation; however, to retire or separate in the higher grade, the officer must serve satisfactorily in the new grade for the 3 years. 2. Title 10, U.S. Code, section 1370, provides the legal authority for retirement in the highest grade held satisfactorily 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 served on active duty satisfactorily, as determined by the Secretary of the military department concerned, for not less than 6 months. The law requires a member to serve on active duty in the rank and pay grade of LTC for a minimum period of 3 years in order for service in this rank and pay grade to be considered satisfactory for the purpose of advancement on the Retired List. 3. Title 10, U.S. Code, section 3964, provides the legal authority for advancement of warrant officers and enlisted members on the Retired List. Warrant officers and enlisted members of the Army are entitled, when their active service plus their service on the retired list totals 30 years, to be advanced on the Retired List to the highest grade in which they served on active duty satisfactorily. DISCUSSION: 1. The applicant requests that he be advanced to the rank and pay grade of LTC/O5 on the Retired List because he completed over 30 years of Federal service. 2. The record shows he was promoted to LTC/O-5 on 1 September 2006. Approximately 19 months later the applicant elected to voluntarily retire and he acknowledged that he would be placed on the Retired List in the rank and pay grade of MAJ/O-4. He had not completed the three-year time in grade requirement necessary to retire in the rank of LTC. He retired on 31 March 2008 and he was placed on the Retired List effective 1 April 2008 in the rank and pay grade of MAJ/O-4. He subsequently served on active duty for an additional year in the rank of LTC in a retiree recall status. 3. The advancement provisions provided in Title 10, U.S. Code, section 3964, are applicable only to retired warrant officers and enlisted personnel. By law, commissioned officers must serve on active duty for three years in the rank/grade to retire in a rank above MAJ and below lieutenant general. 4. The applicant’s length of service is not in question; however, the evidence does not show that he met the statutory criteria to be retired in a higher grade. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150013683 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150013683 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2