ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 22 July 2019 DOCKET NUMBER: AR20170017901 APPLICANT REQUESTS: A change of his retired rank from sergeant major (SGM)/E-9 to captain (CPT)/O3E. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states he held a dual component commission from (approximately) 1980 until his retirement in 2001. He completed all the schools and training required and was promoted from second lieutenant, to first lieutenant to captain within the normal times. He received annual officer efficiency reports, as required. While on active duty, it was explained to him that in holding the dual component commission, and completing the required training, his retirement would automatically change to 'highest rank held' when he reached reserve retirement age (60). When he turned 61 and the change had not been made, he contacted retired pay services, they informed him that they had no jurisdiction over the change and that he needed to contact Human Resources Command (HRC) at Ft Knox, KY. HRC notified him that they could not make the change and advised him to submit this application. 3. The applicant provides his DD Form 214 that shows his honorable retirement on 31 May 2001 in the rank of SGM/E-9. 4. A review of the applicant’s service records shows the following: a. He enlisted in the U.S. Army Reserves on 27 April 1974. b. During his enlisted service while holding the rank/grade of staff sergeant/E-6 in the Regular Army, DA Form 71 (Oath of Office-Military Personnel) shows on what appears to be 2 September 1980, he was appointed as a Reserve commissioned officer of the Army. c. Memorandum from US Army Reserve Personnel Center, St. Louis, MO shows he was promoted to CPT as a Reserve commissioned officer of the Army effective 31 August 1987 His most recent OER confirmed his duties as a Reserve commissioned officer with a thru date of 22 July 1995. d. On 31 May 2001, he was honorably retired in the rank of SGM/E-9. He completed 26 years, 10 months, and 1 day of active service. e. The record is absent evidence showing he served in the rank of CPT during a period of active duty. 5. By regulation, Army Regulation 600-39 (Dual Component Personnel Management Program) prescribes policies governing the Army's Dual Component Personnel Management Program. This program allows the Department of the Army to quickly meet mobilization requirements through procurement of trained commissioned and warrant officers from enlisted and warrant ranks of the Regular Army. The concept of the program is to quickly meet the mobilization needs for officers through procurement of trained commissioned and warrant officers. Current active duty members are ready assets during times of rapid expansion of the Active Army. They can be mobilized to assume greater responsibilities quickly. Warrant officers or enlisted members may retire voluntarily in a commissioned officer status provided they have completed 10 years of active commissioned service in their overall total of 20 years active Federal service and hold a USAR commission at the time of retirement. 6. Title 10, USC, chapter 367, governs retirement for length of service. Section 3911(a) states the Secretary of the Army may, upon the officer's request, retire a Regular or Reserve commissioned officer who has at least 20 years of service, at least 10 years of which have been active service as a commissioned officer. 7. Title 10, USC, chapter 369, governs retired grades. Section 3961 states that the retired grade of a Regular commissioned officer who retires other than for physical disability and the retired grade of a Reserve commissioned officer of the Army who retires other than for physical disability or for non-Regular service under chapter 1223 of this title is determined under section 1370 of this title. 8. Title 10, USC, section 1370(a)(1) (Rule for Retirement in Highest Grade Held Satisfactorily), states that 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 or she served on active duty satisfactorily for not less than 6 months, as determined by the Secretary of the Military Department concerned. 9. Title 10, USC, section 1370(b) (Retirement in Next Lower Grade), states an officer whose length of service in the highest grade he or she 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 for not less than 6 months, as determined by the Secretary of the Military Department concerned. 10. Title 10, USC, section 3964 (Higher Grade after 30 Years of Service: Warrant Officers and Enlisted Members) states in: a. Each retired member of the Army covered by subsection (b) who is retired with less than 30 years of active service is entitled, when his or her active service plus his or her service on the Retired List totals 30 years, to be advanced on the Retired List to the highest grade in which he or she served on active duty satisfactorily (or, in the case of a member of the National Guard, in which he or she served on full-time duty satisfactorily), as determined by the Secretary of the Army. b. This section applies to (1) warrant officers of the Army, (2) enlisted members of the Regular Army, and (3) Reserve enlisted members of the Army who, at the time of retirement, are serving on active duty (or, in the case of members of the National Guard, on Full-Time National Guard Duty). 11. Title 10, USC, section 101(d), defines "active duty" as full-time duty in the active military service of the United States. Such term includes full-time training duty, annual training duty, and attendance at a school designated as a service school while in the active military service. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found the relief was not warranted. The applicant’s contentions were carefully considered. Public law and regulatory guidance provides he needed to serve at the commissioned officer rank while on active duty for at least 10 years; his record clearly shows he did not meet this criteria. The Board agreed there is insufficient evidence to grant relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X X X DENY APPLICATION 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. 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. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 600-39 (Dual Component Personnel Management Program) prescribes policies governing the Army's Dual Component Personnel Management Program. This program allows the Department of the Army to quickly meet mobilization requirements through procurement of trained commissioned and warrant officers from enlisted and warrant ranks of the Regular Army. The concept of the program is to quickly meet the mobilization needs for officers through procurement of trained commissioned and warrant officers. Current active duty members are ready assets during times of rapid expansion of the Active Army. They can be mobilized to assume greater responsibilities quickly. Warrant officers or enlisted members may retire voluntarily in a commissioned officer status provided they have completed 10 years of active commissioned service in their overall total of 20 years active Federal service and hold a USAR commission at the time of retirement. 3. Title 10, USC, chapter 367, governs retirement for length of service. Section 3911(a) states the Secretary of the Army may, upon the officer's request, retire a Regular or Reserve commissioned officer who has at least 20 years of service, at least 10 years of which have been active service as a commissioned officer. 4. Title 10, USC, chapter 369, governs retired grades. Section 3961 states that the retired grade of a Regular commissioned officer who retires other than for physical disability and the retired grade of a Reserve commissioned officer of the Army who retires other than for physical disability or for non-Regular service under chapter 1223 of this title is determined under section 1370 of this title. 5. Title 10, USC, section 1370(a)(1) (Rule for Retirement in Highest Grade Held Satisfactorily), states that 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 or she served on active duty satisfactorily for not less than 6 months, as determined by the Secretary of the Military Department concerned. 6. Title 10, USC, section 1370(b) (Retirement in Next Lower Grade), states an officer whose length of service in the highest grade he or she 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 for not less than 6 months, as determined by the Secretary of the Military Department concerned. 7. Title 10, USC, section 3964 (Higher Grade after 30 Years of Service: Warrant Officers and Enlisted Members) states in: a. Each retired member of the Army covered by subsection (b) who is retired with less than 30 years of active service is entitled, when his or her active service plus his or her service on the Retired List totals 30 years, to be advanced on the Retired List to the highest grade in which he or she served on active duty satisfactorily (or, in the case of a member of the National Guard, in which he or she served on full-time duty satisfactorily), as determined by the Secretary of the Army. b. This section applies to (1) warrant officers of the Army, (2) enlisted members of the Regular Army, and (3) Reserve enlisted members of the Army who, at the time of retirement, are serving on active duty (or, in the case of members of the National Guard, on Full-Time National Guard Duty). 8. Title 10, USC, section 101(d), defines "active duty" as full-time duty in the active military service of the United States. Such term includes full-time training duty, annual training duty, and attendance at a school designated as a service school while in the active military service. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170017901 4 1