BOARD DATE: 15 March 2018 DOCKET NUMBER: AR20160005919 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 advanced on the Retired List to captain effective 1 June 1989 and paying him any retired pay he is due as a result of this correction. 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: 15 March 2018 DOCKET NUMBER: AR20160005919 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 ::x :x :x GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 15 March 2018 DOCKET NUMBER: AR20160005919 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, in effect, advancement on the Retired List to the rank/grade of captain (CPT)/O-3. 2. The applicant states, in effect, he should have been paid as a CPT when he turned 65 years of age. He served as an officer and as an enlisted Soldier. He was told he lost his status as an officer when he was accepted as a warrant officer. 3. The applicant provides a self-authored statement. 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 Regular Army on 31 May 1960. On 30 May 1963, he was discharged due to reaching his expiration of term of service (ETS) and immediately reenlisted on 31 May 1963. On 14 August 1968 he was discharged in order to accept a commission. 3. On 15 August 1968, he was appointed a Reserve commissioned officer. He entered active duty the same day. On 17 October 1973 he was honorably relieved from active duty due to a reduction in strength. He completed 5 years, 2 months, and 3 days of net service this period. The DD Form 214 issued to him at the time shows, in part: * item 5a (Grade, Rate or Rank) the entry "CPT" * item 5b (Pay Grade) the entry "O-3" * item 6 (Date of Rank) the entry "15 AUG 70" * item 30 (Remarks) the entry "Temp CPT AUS, [appointed] 15 Aug 70; Perm 1LT USAR, [appointed] 15 Aug 1970" 4. On 18 October 1973, he reenlisted in the Regular Army in the grade of sergeant first class (SFC). He was discharged on 15 February 1979 and ordered to active duty as a warrant officer. 5. His record contains a DA Form 3713 (Data for Retired Pay), dated 10 November 1982, which shows his active duty rank/grade, permanent rank/grade, highest rank/grade attained and retired pay rank/grade as Chief Warrant Officer Two (CW2/W-2). It also shows he completed 22 years and 9 months of service. It further shows he would be placed on the Retired List effective 1 March 1983. 6. On 10 November 1982, the U.S. Army Military Personnel Center published Orders S217-3 retiring him from active duty. He was transferred to the Retired Reserve. The orders show he held the rank of CW2 on the date of retirement. His effective date of retirement was 28 February 1982. 7. The applicant's active service plus service on the Retired List totaled 30 years on 1 June 1989. 8. According to an official with the Defense Finance and Accounting Service (DFAS) he is currently receiving retired pay as a CW2. REFERENCES: 1. 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 does not provide 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. 2. 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. 3. 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 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. 4. 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 Army to quickly meet mobilization requirements through the procurement of trained 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 who had been appointed and who simultaneously held 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 of 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. The applicant was appointed as a Reserve commissioned officer on 15 August 1968 and served on active duty as a USAR commissioned officer through 17 October 1973. During this period, he was promoted to CPT on 15 August 1970. 2. On 17 October 1973, he was honorably relieved from active duty as a CPT due to a reduction in strength. He completed 5 years, 2 months, and 3 days of net service this period. 3. Following his release from active duty as a commissioned officer, he immediately reenlisted in the Regular Army the grade of SFC. He was discharged on 15 February 1979 and ordered to active duty as a warrant officer. 3. On 10 November 1982, the U.S. Army Military Personnel Center published Orders S217-3 retiring him from active duty. He was transferred to the Retired Reserve. The orders show he held the rank of CW2 on the date of retirement. 4. The governing regulation states retired Soldiers who have less than 30 years of active service are entitled, when their active service plus 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. There is no evidence indicating the applicant’s active duty service as a CPT was unsatisfactory. 5. The applicant's active service plus service on the Retired List totaled 30 years on 1 June 1989. According to the Defense Finance and Accounting Service (DFAS) he is currently receiving retired pay as a CW2. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160005919 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160005919 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2