BOARD DATE: 19 September 2017 DOCKET NUMBER: AR20160001850 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: 19 September 2017 DOCKET NUMBER: AR20160001850 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: 19 September 2017 DOCKET NUMBER: AR20160001850 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 correction of his records to show he was retired in the rank of lieutenant colonel (LTC). He also requests a personal appearance before the Board. 2. The applicant states, in effect, he was promoted to LTC on 7 July 2015. He requested an exception to policy (ETP) to waive the 180-day requirement to serve at that rank because of the mandatory age requirement to retire at age 60. He received orders and correspondence stating his request had been approved on 17 August 2015. 3. The applicant provides: * Orders B-07-502651, issued by U.S. Army Human Resources Command (HRC), Fort Knox, KY on 17 July 2015 * Letter Orders C07-596649, issued by HRC on 31 July 2015 * DA Form 4187 (Personnel Action), dated 7 August 2015, with self-authored letter and endorsement letter * a letter from the Chief, Reserve Component Retirements Branch, HRC, to applicant, dated 17 August 2015 * a memorandum from Commander, HRC to applicant, subject: Request for Waiver of Time in Grade (TIG) Requirement, dated 22 September 2015 * Letter Orders C07-596649 AO1, issued by HRC on 23 November 2015 CONSIDERATION OF EVIDENCE: 1. After prior enlisted service in the U.S. Army Reserve (USAR), the applicant was appointed on 7 December 1996 as a Reserve commissioned officer of the Army. He was appointed in the Medical Services Corps (MS) in area of concentration 70B (Health Services Administration), for an indefinite term. 2. The applicant received his Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter) on 31 March 2005, informing him that he completed the required years of qualifying service and was eligible for non-regular retired pay on application at age 60. 3. The applicant was promoted to the rank of major (MAJ) on 8 April 2008. 4. Orders R-06-885572, issued by HRC, St. Louis, MO on 12 June 2008, ordered the applicant to active duty in an Active Guard/Reserve (AGR) status, effective 21 July 2008. 5. The applicant's record contains DD Form 108 (Application for Retired Pay Benefits), dated 23 September 2014, which shows he applied for retirement benefits, beginning 1 November 2015, consistent with reaching his 60th year of age on 3 October 2015. This form shows his rank as MAJ. 6. Orders C-04-505783, issued by HRC, Fort Knox, KY on 13 April 2015, show the applicant was released from the USAR Control Group (Reinforcement) and was reassigned to the Retired Reserve, by reason of maximum age, effective 31 October 2015. 7. Orders B-07-502651, issued by HRC, Fort Knox, KY on 17 July 2015, show the applicant was promoted to LTC, effective 7 July 2015. 8. Letter Orders C07-596649, issued by HRC, Fort Knox, KY on 31 July 2015, ordered his placement on the Army of the United States (AUS) Retired List, effective 1 November 2015, in the rank of LTC. 9. The applicant provides: a. A DA Form 4187 and a self-authored letter to the Commander, HRC, both dated 7 August 2015, wherein he requested an exception to Army Regulation 600-8-29 (Officer Promotions), chapter 1, paragraph 1-18, which addresses the 3-year active duty service obligation requirement to retire at the pay grade of LTC. He noted that he was promoted to LTC on 7 July 2015 and would attain his maximum years of service on 3 October 2015, upon reaching age 60. As such, he would be required to be released from active duty on 1 November 2015. Due to this requirement, he could not fulfill the 3-year obligation in order to receive retired pay at LTC; he would be 64 days short of fulfilling the six-month obligation due to his mandatory retirement date (MRD) as the policy states. b. A letter from the Chief, Reserve Component Retirements Branch, HRC, dated 17 August 2015, wherein he was notified that his application for retired pay had been approved. The letter addressed his rank as LTC. c. A memorandum from the Commander, HRC, dated 22 September 2015, subject: Request for Waiver of Time in Grade (TIG) Requirement, wherein he was notified that his ETP for TIG service requirement wavier had been reviewed in accordance with applicable regulations and law and was disapproved. 10. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was honorably released from active duty under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 2-21, by reason of maximum age and transferred to the USAR Control Group (Reinforcement) on 30 October 2015. His DD Form 214 shows his rank as MAJ. 11. Orders C07-596649 AO1, issued by HRC on 23 November 2015, amended his placement date on the AUS Retired List to 2 November 2015. This date was further amended back to 1 November 2015. These orders show his rank as MAJ. REFERENCES: 1. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 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. DISCUSSION: 1. The applicant was promoted to LTC on 7 July 2015; however, he met his MRD due to reaching the maximum age of 60 on 31 October 2015. He requested an ETP waving the 6-month requirement in order to retire at the rank of LTC; however, the Commanding General, HRC, disapproved his request. He received orders placing him on the AUS Retired List in the rank of LTC; however, these orders were later amended showing his retired rank as MAJ in accordance with applicable laws and regulations. 2. By law, in order to be retired in the highest grade in which he served on active duty satisfactorily, an officer must serve for not less than 6 months. Unfortunately, he served in the rank of LTC for less than 4 months. The Board does not have the authority to change or amend law. 3. The applicant's request for a personal appearance hearing was carefully considered. However, by regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001850 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001850 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2