IN THE CASE OF: BOARD DATE: 15 November 2017 DOCKET NUMBER: AR20160003803 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 IN THE CASE OF: BOARD DATE: 15 November 2017 DOCKET NUMBER: AR20160003803 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 to amend the decision of the ABCMR set forth in Docket Number AR20140002856, on 16 December 2014. ___________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. IN THE CASE OF: BOARD DATE: 15 November 2017 DOCKET NUMBER: AR20160003803 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 reconsideration of his earlier request for correction of his military records to reflect the highest grade held. 2. The applicant states: a. He requests his military retirement pay reflect his service as a dual component; serving both on active duty at the highest commissioned officer rank/grade of captain (CPT)/O-3 and an the enlisted grade of E-6, and in the Army Reserve with a Reserve commission to the rank of lieutenant colonel (LTC)/O-5. As a commissioned officer, he was not a Regular Army (RA) officer, which entitles him to the highest grade attained with respect to benefits. He previously applied for this correction and was denied by the Board as not being filed within the prescribed time limits after the error or injustice was discovered or reasonably should have been discovered. He argues that the statute of limitations should be waived in the interest of justice as he was repeatedly not given correct information. b. He requests the Board's previous decision be reversed as he is questioning "by whom" the error or injustice should reasonably have been discovered? His status as a dual component service member has repeatedly given both himself and military personnel confusion. Upon his retirement in 1992, the Officer Retirement and Separation Branch at Fort Devens, MA, informed him that his records would be sent to St. Louis, MO, where his retirement pay, to include his highest Reserve commission grade, would be calculated. When his retirement pay did not reflect this inclusion, he again inquired and was informed that he had to be retired for 10 years before his highest Reserve commission grade could be reflected in benefits. c. As such, in 2002, he inquired once more and was told that he had to attain the retirement age of 65 to receive full military benefits. He believes it was in August 2013 when he inquired once more at Aberdeen Proving Grounds, MD, and a knowledgeable older civilian personnel specialist informed him that that an application for correction of military records would need to be submitted. He asked why this was necessary since his military records (for example Defense Enrollment Eligibility Reporting System (DEERS)) already reflected his retired Reserve commission status. This was the first and only time he was even made aware of this application process and its requirement for filing. The civilian personnel specialist indicated that this would correct all his military records. d. He filed an application in February 2014 before turning 65 in September of that year. Approximately a year later, he received notification that his request had been denied for untimeliness. Time after time over the years, he inquired at personnel offices at various military installations in reference to this matter, and over and over again was given misinformation; in many instances by personnel not having any idea that such a regulation for dual component status even existed. He even checked with the Military Reserve Center in St. Louis and Officer Personnel in Washington, DC, and no one could give him any information other than the waiting times for Regular Reserve retired personnel. In the interest of justice, he requests the Board reconsider its original decision and waive the statute of limitations due to the fact that he was consistently given erroneous information and was not made aware of the proper form for submission or of any time restrictions for filing. He further believes this was an error made by the military administrative system and not one caused by him. Prior to his retirement date and at all times since, he had been issued an identification card reflecting his proper military retired grade of O-5 and that is the only benefit he has received. e. He is unable to provide any hard evidence to support his argument, as the time frame in question covered many years and several military installation personnel offices. During this time, military personnel changed and thus he cannot document the advice he was given, the exact dates it was provided, and by whom. He can only state that he pursued administrative remedies to acquire his full military benefits, and in this case it appears that he has only what he has here to and previously submitted, to request correction of an error that military records failed to insure correctness of at his retirement. He continued his Reserve commission status while on active duty, furthering his education and taking on more responsibilities, with the belief that full benefits would be provided him at some time after his retirement. 3. The applicant provides no additional evidence. CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20140002856, on 16 December 2014. 2. The applicant provides a new argument that warrants consideration by the Board. 3. The applicant was born in September 1949. 4. He enlisted in the RA on 3 February 1972. He completed Infantry Officer Candidate School from September 1972 to March 1973. He was honorably discharged on 12 March 1973 to accept a commission. He completed 1 year, 1 month, and 10 days of active service. 5. He was appointed as a Reserve commissioned officer of the Army with concurrent call to active duty on 13 March 1973. He served in a variety of assignments and he was promoted to CPT/O-3 on 13 March 1977. 6. He was honorably released from active duty in the rank of CPT on 1 January 1985 due to not being selected for permanent promotion. He was transferred to the U.S. Army Reserve Control Group (Reinforcement). His DD Form 214 (Certificate of Release or Discharge from Active Duty) for this period shows he completed 11 years, 9 months, and 19 days of active service. 7. He enlisted in the RA on 2 January 1985. He held military occupational specialty 01H (Biological Sciences Assistant). He served in a variety of assignments. He was promoted to the enlisted rank/grade of staff sergeant (SSG)/E-6 on 1 August 1985. 8. On 12 August 1986, the U.S. Army Reserve (USAR) Personnel Center, St. Louis, MO, issued the applicant a memorandum promoting him to the rank/grade of major (MAJ)/O-4 in the USAR, effective 18 March 1986 and with a date of rank as 12 March 1985. 9. On 2 March 1992, the U.S. Total Army Personnel Command (PERSCOM) published Orders S41-24 retiring him from active duty and discharged him from his enlisted status (SSG/pay grade E-6) for the convenience of the government. He was transferred to the USAR, Retired Reserve. This order shows his retired grade of rank was LTC effective 31 March 1992. The orders stated he held the rank of SSG on the date of retirement. 10. Also on 2 March 1992, PERSCOM processed a DA Form 1173 (Data for Retired Pay) placing him in the retired list effective 1 April 1992. This form indicated the following: * the highest grade attained as "CPT" * the grade for retired pay as "CPT" * the permanent grade as LTC * the statute authorizing his retirement is Title 10, U.S. Code, section 1370 * he completed 20 years, 1 month, and 28 days of Title 10, U.S. Code, section 1405 service 11. On 16 December 2014, the Board reviewed his case and determined: a. The highest grade the applicant held on active duty was CPT and he was computed for retired pay at that grade. He was placed on the Retired List in his USAR grade of LTC; however, it appears his retirement order may have erroneously listed his retired grade as LTC. b. Accordingly, there does not appear to be an error or injustice in his case and no basis to grant his request. REFERENCES: 1. Title 10, U.S. Code, section 1370 states: a. Rule for Retirement in Highest Grade Held Satisfactorily. (1) Unless entitled to a higher retired grade under some other provision of law, a commissioned officer (other than a commissioned warrant officer) of the Army, Navy, Air Force, or Marine Corps who retires under any provision of law other than chapter 61 or chapter 1223 of this title shall, except as provided in paragraph (2), be retired in the highest grade in which he served on active duty satisfactorily, as determined by the Secretary of the military department concerned, for not less than 6 months. (2) In order to be eligible for voluntary retirement under any provision of this title in a grade above major or lieutenant commander, a commissioned officer of the Army, Navy, Air Force, or Marine Corps must have served on active duty in that grade for not less than 3 years, except that the Secretary of Defense may authorize the Secretary of a military department to reduce such period to a period not less than 2 years. (3) A reserve or temporary officer who is notified that he will be released from active duty without his consent and thereafter requests retirement under section 3911, 6323, or 8911 of this title and is retired pursuant to that request is considered for purposes of this section, to have been retired involuntarily. An officer retired pursuant to section 1186(b)(1) of this title is considered for purposes of this section to have been retired voluntarily. Also, paragraph (3)(B) (Retirement in Next Lower Grade), an officer whose length of service in the highest grade he held while on active duty does not meet the service in grade requirements specified in subsection (a) shall be retired in the next lower grade in which he served on active duty satisfactorily, as determined by the Secretary of the military department concerned, for not less than 6 months. (4) A person whose length of service in the highest grade held does not meet the service in grade requirements specified in this subsection shall be credited with satisfactory service in the next lower grade in which that person served satisfactorily (as determined by the Secretary of the military department concerned) for not less than 6 months. b. Retirement in Next Lower Grade. An officer whose length of service in the highest grade he held while on active duty does not meet the service in grade requirements specified in subsection (a) shall be retired in the next lower grade in which he served on active duty satisfactorily, as determined by the Secretary of the military department concerned, for not less than 6 months. c. Reserve Officers. (1) Unless entitled to a higher grade, or to credit for satisfactory service in a higher grade, under some other provision of law, a person who is entitled to retired pay under chapter 1223 of this title shall, upon application under section 12731 of this title, be credited with satisfactory service in the highest grade in which that person served satisfactorily at any time in the armed forces, as determined by the Secretary concerned in accordance with this subsection; and (2) In order to be credited with satisfactory service in an officer grade (other than a warrant officer grade) below the grade of lieutenant colonel or commander, a person covered by paragraph (1) must have served satisfactorily in that grade (as determined by the Secretary of the military department concerned) as a reserve commissioned officer in an active status, or in a retired status on active duty, for not less than 6 months. 2. Title 10, U.S. Code, section 3911, states that Regular or Reserve commissioned officers may retire as commissioned officers if they have at least 20 years of service, 10 years of which have been active duty service as a commissioned officer. The law provides no provisions for placing a commissioned officer on the Retired List in a rank he was promoted to in the USAR while serving on active duty in an enlisted status in a dual component program. 3. Title 10, U.S. Code, section 3964, provides that a retired enlisted member or warrant officer of the Army who is retired with less than 30 years of active service is entitled, when his active service plus his service on the Retired List totals 30 years, to be advanced on the Retired List to the highest grade in which he served on active duty satisfactorily as determined by the Secretary of the Army. Rank placement on the Retired List is based solely on the highest rank in which a member satisfactorily served on active duty. USAR service in an inactive status while a member of a dual component program does not satisfy this active duty satisfactory service provision of the law. 4. Army Regulation 635-200 (Personnel Separations) sets forth the basis authority for separation of enlisted personnel. Chapter 12 provides policy and guidance on retirement for length of service. Paragraph 12-6 states in pertinent part, that retired Soldiers who have less than 30 years of active service are entitled, when their active service plus service on the retired list total 30 years, to be advanced on the retired list to the highest grade in which they served on active duty satisfactorily (or, in the case of Reserve Soldiers, in which they served on full-time duty satisfactorily) in accordance with Title 10, U.S. Code, section 3964. This provision applies to warrant officers, RA enlisted Soldiers, and Reserve enlisted Soldiers who, at the time of retirement, are serving on active duty (or full-time National Guard Duty). Upon completion of 30 years of service, their military personnel records are reviewed to determine whether service in the higher grade was satisfactory. 5. Army Regulation 600-39 (Dual Component Personnel Management Program) set policy for enlisted personnel and warrant officer personnel holding dual status in both the Active Army and the Army Reserve. This program allowed the Department of the Amy to quickly meet mobilization requirements through the procurement of train commissioned and warrant officer’s from the enlisted and warrant officer ranks of the Regular Army. Dual component personnel consisted of Regular Army or Army of the United States enlisted or warrant officers have been appointed and who simultaneously hold status as Reserve commissioned or warrant officers. This regulation states various Laws governing 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: a. They have completed 10 years of active commissioned service in their overall total of 20 years, active Federal service, and b. they hold a USAR commission at the time of retirement. c. On completion of 30 years of service (active federal service and Retired List) the Soldier may be advanced to the highest grade satisfactorily held while serving on active duty. DISCUSSION: 1. Concerning the applicant’s contention about the statute of limitations for filing a case with the ABCMR, the Board did not deny his case due to the statute of limitations. The statute of limitations was waived by the Board in the previous case. 2. The applicant was appointed as a Reserve commissioned officer on 13 March 1973 and served on active duty, as a USAR commissioned officer, through 1 January 1985. During this period, he was promoted to CPT on 13 March 1977. He was released from active duty in January 1985 in the rank of CPT and he was transferred to the USAR Control Group (Reinforcement). He completed 11 years, 9 months, and 19 days of active service this period. 2. Following his release from active duty as a commissioned officer, he immediately enlisted in the RA on 2 January 1985 and served through 31 March 1992, attaining the rank/grade of SSG/E-6. While in an enlisted status, he was also assigned to the USAR Control Group where he was promoted to MAJ in March 1986 and to LTC. There is no evidence he served in an active status or in an inactive drilling status and received pay in the grade of MAJ or LTC for a period of 6 months. 3. He met the criteria for sufficient length of active federal service to retire. On his last date of enlisted service he held the rank/grade of SSG/E-6. His separation order and corresponding DD Form 214 show his rank/grade as SSG/E-6. Concurrent with his retirement, a DA Form 3713 was prepared by a personnel officer showing the applicant’s retired pay grade as CPT and his permanent grade LTC. Thus complying with Title 10, U.S. Code, section 3911 wherein the applicant served more than 10 years of active federal service as a commissioned officer and was entitled to retired pay in the highest grade he served while on active duty. 4. As stipulated in the statute, a person whose length of service in the highest grade held does not meet the service in grade requirements specified in this subsection shall be credited with satisfactory service in the next lower grade in which that person served satisfactorily (as determined by the Secretary of the military department concerned) for not less than 6 months. There is no evidence showing the applicant served for 6 months as a USAR MAJ or LTC other than as a dual component member. The purpose of the dual component program was to allow the Army to quickly mobilize from the ranks of active duty enlisted personnel, Reserve commissioned officers to serve during a period of mobilization. 5. By statute the applicant's dual status in the USAR as a MAJ or LTC does not fulfill the active duty satisfactory service requirement necessary (6 months) for advancement on the Retired List. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160003803 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160003803 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2