IN THE CASE OF:
BOARD DATE:  28 February 2022
DOCKET NUMBER: AR20210008570 


APPLICANT REQUESTS: correction of his record to show he was retired in the highest grade held of captain (CPT)/O-3 instead of sergeant first class (SFC)/E-7. 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

•In lieu of DD Form 149 (Application for Correction of Military Record), theapplicant submitted a statement, dated 12 April 2021.

•Army Review Boards Agency (ARBA) memorandum, dated 28 August 2013

•DA Form 1506 (Statement of Service for Computation of Length of Service forPay Purposes), dated 14 July 2011 with corrected copy

•7-DD Forms 214 (Certificate of Release or Discharge from Active Duty)



FACTS: 

1.The applicant states, in effect, the he should be advanced on the retired list to thehighest grade that he satisfactorily held while on active duty, under the provisions ofTitle 10, U.S. Code, Section 3964. He further states:

a.Although, he retired on 31 August 2012 in the rank of SFC, he previously held therank of CPT for six years while on active duty. He did not have enough active duty time as a major (MAJ)/O-4 to qualify for that grade. The ARBA previously reviewed his request and informed him that he may become eligible around January 2021. 

b.He was twice nonselected for promotion to lieutenant colonel (LTC)/O-5;therefore, he revered to his enlisted status. All of his service has been honorable. 

2.The applicant was born in August 1956.

3.He enlisted in the U.S. Army Reserve (USAR) on 8 September 1977 as a ReserveOfficer’s Training Corps cadet.

4.On 19 July 1979, the applicant was appointed as a Reserve commissioned officer ofthe Army, with concurrent call to active duty, in the rank of second lieutenant (2LT)/O-1.

5.The applicant was subsequently promoted to:

•first lieutenant (1LT)/O-2, on 28 March 1981

•CPT/O-3 on 1 August 1983



6.On 9 January 1990, he was notified of his 2nd nonselection for promotion to MAJand mandatory separation.

7.He was honorably released from active duty in the rank of CPT on 1 July 1990. HisDD Form 214 lists the reason for separation as “Failure of selection-permanentpromotion.” He was transferred to the U.S. Army Reserve Control Group(Reinforcement). His DD Form 214 for this period shows he completed 10 years,
9 months, and 11 days of active service.

8.On 18 July 1991, the applicant was promoted to MAJ/O-4, in the USAR.

9.On 17 October 2002, he enlisted in the USAR in the pay grade E-5 (sergeant/SGT).Based on his overall service the applicant was later promoted through the ranks toSFC/E-7 on 15 September 2005.

10.On 19 November 2009, the U.S. Army Human Resources Command, St. Louis,MO, notified the applicant of his eligibility for retired pay at age 60 (Twenty Year Letter).

11.Orders 258-0001, issued by Headquarters, 1st Infantry Division and Fort Riley, FortRiley, KS, dated 15 September 2011, released the applicant from active duty in the rankof SFC, effective 31 August 2012, and placed him on the Retied List, in the rank of SFC,effective 1 September 2012. These orders show he had 20 years, and 27 days ofservice for voluntary retirement.

12.The applicant retired on 31 August 2012. His DD Form 214 shows he held the rankand pay grade of SFC/E-7 at the time of his retirement. This document further showsthe applicant completed:

•1 year, 1 month, and 25 days of net active service for the period

•18 years, 11 months, and 2 days of prior active service

•12 years, 11 months of prior inactive service



13.On 28 August 2013, the ARBA notified the applicant that he must wait until he hadreached his 30-year point (around January 2021) before applying to be advanced on theretired list to the grade of O-3. The 30-year point would be his time on active duty(20 Years, and 27 days), and his time on the Retired List. The service listed on hisDA Form 1506 included inactive time.

14.The applicant provides:

a.Two DA Forms 1506, one being a corrected version of the other, which show theapplicant completed commissioned and enlisted, active and inactive duty service, while serving in the USAR from 19 July 1979 through 5 July 2011. 

b.Several DD Forms 214, issued while a member of the USAR, as follows:

•CPT, from 21 September 1979 to 1 July 1990 (10 years, 9 months,


and 11 days)
•CPT, from 22 January 1991 to 19 May 1991 (3 months, 28 days)

•Staff Sergeant, from 7 December 2003 to 2 April 2005 (1 year, 3 months,


26 days)
•SFC, from 1 October 2005 to 5 April 2006 (6 months, and 5 days)

•SFC, from 2 May 2007 to 3 February 2010 (2 years, 11 months, and 29 days)

•SFC, from 24 April 2010 to 5 July 2011 (1 year, 2 months, and 12 days)

•SFC, from 6 July 2011 to 31 August 2012 (1 year, 1 month, 25 days)



15.Applicable statue provides that a retired enlisted member or warrant officer of theArmy who is retired with less than 30 years of active service is entitled, when his activeservice plus his service on the Retired List totals 30 years, to be advanced on theRetired List to the highest grade in which he served on active duty satisfactorily asdetermined by the Secretary of the Army. A rank placement on the Retired List is basedsolely on the highest rank in which a member satisfactorily served on active duty.

BOARD DISCUSSION: 

After review of the application and all evidence, the Board determined there is sufficient evidence to grant relief. The applicant’s contentions, his military record, and regulatory guidance were carefully considered. The governing regulation provides that at separation the service member’s record will be used to enter accurate information when completing their DD Form 214. The Board agreed that there was sufficient documentation to show he held the rank of Captain (CPT) for the service period; thereby warranting correction in this case.  

BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

:X :X :X GRANT FULL RELIEF 

: : : GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

: : : DENY APPLICATION 



BOARD DETERMINATION/RECOMMENDATION: 

The Board determined the evidence presented is 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 amending the applicant's retirement order, Order 258-0001, dated 15 September 2011 to show the rank of CPT, and to amend his DD Form 214 for the period ending 31 August 2012 by showing: 







Microsoft Office Signature Line...



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, acommissioned 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 titlein 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 fromactive 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 theservice 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 highestgrade 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 satisfactoryservice 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 3964, provides that a retired enlisted member or warrantofficer 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 beadvanced on the Retired List to the highest grade in which he served on active dutysatisfactorily as determined by the Secretary of the Army. Rank placement on theRetired List is based solely on the highest rank in which a member satisfactorily servedon active duty. USAR service in an inactive status while a member of a dual componentprogram does not satisfy this active duty satisfactory service provision of the law.

3.Army Regulation (AR) 635-200 (Personnel Separations) sets forth the basis authorityfor separation of enlisted personnel. Chapter 12 provides policy and guidance onretirement for length of service. Paragraph 12-6 states in pertinent part, that retiredSoldiers who have less than 30 years of active service are entitled, when their activeservice plus service on the retired list total 30 years, to be advanced on the retired list tothe highest grade in which they served on active duty satisfactorily (or, in the case ofReserve Soldiers, in which they served on full-time duty satisfactorily) in accordancewith Title 10, U.S. Code, section 3964. This provision applies to warrant officers, RAenlisted Soldiers, and Reserve enlisted Soldiers who, at the time of retirement, areserving on active duty (or full-time National Guard Duty). Upon completion of 30 yearsof service, their military personnel records are reviewed to determine whether service inthe higher grade was satisfactory.

4.AR 135-180 (Retirement for Non-Regular Service) paragraph 4-6 states, retired payfor a non-regular retirement is determined for service if the Soldier was transferred tothe Retired Reserve or discharged on or after 25 February 1975, retired grade will bethat grade which a commissioned officer or enlisted Soldier held while on active duty orin an active reserve status for at least 185 days or 6 calendar months.

//NOTHING FOLLOWS//