ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 17 September 2019 DOCKET NUMBER: AR20180011894 APPLICANT REQUESTS: retirement in the highest grade held of Colonel (COL)/O-6 APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * United States Army Military Personnel Center Order Number 177-40 * United States Army Military Personnel Center Order Number S108-10 * DD Form 214 (Certificate of Release or Discharge from Active Duty) * retired identification card in the grade of lieutenant colonel (LTC)/O-5 * newspaper article about the applicant’s degree paper * United States Army Reserve Personnel Center letter to applicant regarding his information being placed in the voluntary mobilization system 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 is requesting to be retired in the highest grade held, which was COL/O-6. He served in Vietnam from 1965 to 1966 as a helicopter pilot with a total of 23 years. He also served as a judge advocate general officer for 13 years. During his many years of service, he earned several awards, decorations, and accommodations. He was promoted to the rank of COL/O-6 on 1 January 1983. He culminated his outstanding and exemplary record when he retired on 31 July 1983. 3. A review of the applicant’s service record shows: a. He was appointed as a reserve commissioned officer on 28 July 1961 in the grade of second lieutenant (2LT)/O-1. b. On 6 January 1962, the applicant was ordered to active duty in his current reserve grade of 2LT/O-1 to service a period of 24 months. c. He was promoted to the grade of LTC/O-5 effective 1 August 1977 with the date of rank (DOR) of 3 July 1977. d. United States Army Military Personnel Center Order Number 177-40 dated 2 December 1982, promoted the applicant to the grade of COL/O-6 effective 1 January 1983 with the same DOR. e. He was retired from active duty on 31 July 1983 with an honorable characterization of service under provisions of Army Regulation 635-100 (Personnel Separations – Officer Personnel), chapter 4 (Retirement). His DD Form 214 shows that he completed 21 years, 4 months, and 25 days of active service. f. United States Army Military Personnel Center Order Number S108-10 dated 8 June 1983, retired the applicant from active service on 31 July 1983 in the rank of LTC and placed him on the retired list the following day. 4. By regulation 15-80 (Army Grade Determination Review Board and Grade Determinations), The Deputy Assistant Secretary of the Army (Review Boards) (DASA (RB)) will make discretionary grade determination for the Secretary of the Army (SA) for officer below the grade of brigadier general involving service retirement, physical disability retirement, computation of retirement pay, or separation for physical disability. The DASA (RB) retains the authority to take final action in any case in which a subordinate authority, including the AGDRB, would otherwise be authorized to take final action. Under 10 USC 1370, an officer will normally retire at the highest grade served, unless service at that grade is deemed unsatisfactory, or the officer failed to meet statutory time in grade requirements. 5. By law (10 USC §?1370), 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 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. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined relief was not warranted. The Board voted unanimously to deny relief as he did not fulfill the service requirements for such promotion to COL based upon regulatory guidance. The applicant only served in that grade of COL from January to July 1983 and failed to provide any reason for an exception to policy on a basis of hardship or exceptional or unusual circumstances. For that reason, the Board concluded that there was no evidence of an error or injustice which would warrant making a change to the applicant’s record. 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 (AR) 15-80 (Army Grade Determination Review Board and Grade Determinations), in effect at the time, set forth the basic authority for grade determination. The Deputy Assistant Secretary of the Army (Review Boards) (DASA (RB)) will make discretionary grade determination for the Secretary of the Army (SA) for officer below the grade of brigadier general involving service retirement, physical disability retirement, computation of retirement pay, or separation for physical disability. The DASA (RB) retains the authority to take final action in any case in which a subordinate authority, including the AGDRB, would otherwise be authorized to take final action. Under 10 USC § 1370, an officer will normally retire at the highest grade served, unless service at that grade is deemed unsatisfactory, or the officer failed to meet statutory time in grade requirements. Paragraph 2-4c (Grade Determination Considerations) (Lengths of Time in Grade (TIG)), the Army Grande Determination Review Board (AGDRB) cannot waive statutory TIG requirements for retirement at the current grade, such as the 31 or more days of service required at a previously held higher grade for a warrant officer to retire at the higher grade under the provisions of section 1371, title 10 United States Code (USC); the 6 months for second lieutenants through majors; and the 3 years for lieutenant colonels and above under the provisions of 10 USC § 1370, except as otherwise specifically authorized by law. For instance, TIG requirement can be negated by operation of law in disability cases. 3. 10 U.S. Code §?1370, Commissioned Officers General Rule; exceptions, (a) Rule for retirement in highest held satisfactorily (2) (a), 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. 4. AR 600-8-24 (Officer Transfers and Retirements) in effect at the time, set forth the prescribed the officer transfers from active duty to the Reserve Component and discharge functions for all officer on active duty for 30 days or more. It provided principles of support, standards of service, policies, tasks, rules, and steps governing all work required to support officer transfers and discharges. Chapter 6 (Retirements) states a commissioned officer must serve on active duty 3 years in grade to retire in rank above major and below lieutenant general. However, the Secretary of Defense has authorized the Secretary of the Army to waive this requirement in individual cases involving extreme hardship or exceptional or unusual circumstances. ABCMR Record of Proceedings (cont) AR20180011894 3 1