IN THE CASE OF: BOARD DATE: 22 November 2021 DOCKET NUMBER: AR20210011205 APPLICANT REQUESTS: In effect, * To be advanced on the retired list to lieutenant colonel (LTC)/O-5 * A personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Letter for Army Grade Determination Review Board * Orders 157-0502, 5 June 2000 * Order Number 294-011, 20 October 2000 * 10 U.S. Code § 1370 FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) 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 stated he requests to be advanced on the retired list to the highest grade that he, having not being forced to retire, would have held while on active duty, under the provisions of 10 U.S. Code§ 1370 - Commissioned officers: general rule; exceptions; (a)(1) Rule for Retirement in Highest Grade Held Satisfactorily; (2)(A) & (D). He is not seeking retroactive pay or increase in future pay. He only seeks a change of his rank to LTC or LTC/0-4 for pay on the military retirement list, his official records and his DD Form 214 (Certificate of Release or Discharge from Active Duty). a. Prior to settling on his retirement date, his Assignment Officer (AO) contacted him about a new assignment at Scott Air Force Base, IL. He stated it was urgent for him to fill this position. Since the applicant was in the St. Louis area, he was the ideal candidate to fill the position. The applicant told his AO of his critical family issues and his intent to retire in 2001. The AO was angry the applicant would not accept the assignment. The AO stated he could not remain in his position past 30 September 2000. The applicant also asked about his promotion. He stated that he did not know when he would be promoted. A month after his retirement, the AO sent him a copy of his promotion orders effective 1 November 2000. The applicant believed the actions of his AO were an injustice and intentionally denied him an opportunity to pin on the rank he had earned. b. In a letter to the Army Grade Determination Board (AGDRB), the applicant stated it is his belief that his request qualifies under the "unusual circumstances" provision of 10 U.S. Code § 1370 (a)(1) Rule for Retirement in Highest Grade Held Satisfactorily; (2)(A) & (D). Although he retired on 1 September 2000 in the grade of O-4(P), he was slotted in an O-5 position as Chief, Contracting Division for 18 months while on active duty. This O-5 position was his last active duty assignment. According to his calculation, he had a total of 43 years of time in Active service and on the retired list. c. He provided his argument of unusual circumstances in detail. He believes the actions of his AO were an injustice and intentionally denied him an opportunity to pin on the rank he had earned. (The entire letter is available in documents for review). 3. The applicant provided: * Letter for Army Grade Determination Review Board addressed above * Orders 157-0502, 5 June 2000 showing he was retired from active duty and placed on the retired list the following date effective 31 August 2000 in the rank of major (MAJ) with a date of rank (DOR) of 1 August 1995 * Order Number 294-011, 20 October 2000 showing he was to be promoted to LTC on 1 November 2000 * 10 U.S. Code § 1370 printout highlighting (2)(A) and (D) 4. A review of the applicant’s service records shows: a. Having had prior enlisted service, he was appointed as a Reserve commissioned officer of the Army on 25 May 1983. He served in various leadership capacities within the Army during his career. He served in Southwest Asia from 19900902 – 19910401. b. He was promoted to MAJ on 1 August 1995. c. Orders 157-0502, issued by Headquarters, United States Army Aviation Center, Fort Rucker, AL on 5 June 2000 shows he was retired from active duty and placed on the retired list the following date effective 31 August 2000 in the rank of MAJ with a DOR of 1 August 1995. d. On 31 August 2000, he was honorably released from active duty for retirement in the grade of MAJ and pay grade of O-4. His DD Form 214 shows he completed 16 years, 4 months, and 22 days net active service this period. e. Order Number 294-011 provided by the applicant shows he was to be promoted to LTC on 1 November 2000 (after his retirement). Date of Senate confirmation was 6 October 2000. 5. By regulation, AR 15-185 (ABCMR) states applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 6. By regulation, AR 15-80 (AGDRB and Grade Determinations) establishes policies, procedures, and responsibilities of the AGDRB and other organizations delegated authority to make grade determinations on behalf of the Secretary of the Army (SA). 7. By law, Title 10, U.S. Code, section 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. a. Part (2)(A) states 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 three 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 two years. b. Part (2)(D) states The President may waive subparagraph (A) in individual cases involving extreme hardship or exceptional or unusual circumstances. The authority of the President under the preceding sentence may not be delegated. 8. By law, Title 10 USC section 629 (Removal from a list of officers recommended for promotion) (d) (Administrative Removal) — under regulations prescribed by the Secretary concerned, if an officer on the active-duty list is discharged or dropped from the rolls or transferred to a retired status after having been recommended for promotion to a higher grade under this chapter, but before being promoted, the officer’s name shall be administratively removed from the list of officers recommended for promotion by a selection board. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicant’s contentions, military record, and applicable regulatory guidance. The Board noted that Order Number 294-011 provided by the applicant shows he was to be promoted to LTC on 1 November 2000, a date after his retirement. Based on the documentation available for review, upon declining an assignment based on an expressed intent to retire, the applicant became ineligible for further promotion in accordance with law. As such, the Board found no evidence of an error or injustice warranting correction 2. The applicant's request for a personal appearance was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance before the Board is not necessary to serve the interest of equity and justice in this case. 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, United States 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 ABCMR to excuse an applicant's failure to timely file within the 3 year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. a. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. Paragraph 2-11 states applicants do not have a right to a formal hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 2. AR 15-80 (AGDRB and Grade Determinations) establishes policies, procedures, and responsibilities of the AGDRB and other organizations delegated authority to make grade determinations on behalf of the Secretary of the Army (SA). a. The AGDRB considers individual cases that are referred to it in accordance with this regulation. It directs or recommends the final grade determination that affects an individual’s separation or retired pay. The AGDRB decides cases on the evidence of record. It is not an investigative body. AGDRB discussions and individual votes of members are privileged and confidential and will be disclosed only to those individuals in the decision-making process with a need to know. b. Under Title 10, U.S. Code, section 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. c. The DASA (RB) will make discretionary grade determinations for the SA for officers below the grade of brigadier general involving service retirement, physical disability retirement, computation of retired 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. 3. Title 10. U.S. Code, section 1370 (Commissioned officer, general rule; exceptions). a. Rule for Retirement in Highest Grade Held Satisfactorily. 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 six 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 six months. 4. Title 10 USC section 629 (Removal from a list of officers recommended for promotion) (d) (Administrative Removal) — states under regulations prescribed by the Secretary concerned, if an officer on the active-duty list is discharged or dropped from the rolls or transferred to a retired status after having been recommended for promotion to a higher grade under this chapter, but before being promoted, the officer’s name shall be administratively removed from the list of officers recommended for promotion by a selection board. 5. DOD Financial Management Regulation, volume 7B (Military Pay Policy and Procedures-Retired Pay), chapter 1 (Initial Entitlements-Retirements), section 0105 (Rank and Pay Grade), paragraph 010501A (General Determinations) states that unless entitled to a higher grade under some other provision of law, those regular and Reserve members who retire other than for disability will retire in the regular or Reserve grade they hold on the date of retirement. Paragraph 10503 (Satisfactory Service) provides that the determination as to what constitutes satisfactory service for the purpose of retirement in the highest grade is within the discretionary power of the Secretary of the Military Department concerned. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210011205 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1