Can the Army Early Retire a Captain back to their former Enlisted Grade?

CPT Michael Forcier — Mon, 04 Aug 2014 11:20:17 -0400

Recently the Army announced that 1,188 Captains were selected by the OSB/ESERB for seperation and early retirement. Of that total number 101 Captains do not meet the statutory Active Federal Commissioned Service time (currently 8 years) to retire as an Officer.

The requirement for AFCS is found in 10 U.S.C. section 3911.

The authority to to early retire officers is found in 10 U.S.C. section 638A and reads:
"officers on the active-duty list may be considered for early retirement by a selection board.......Officers....holding a regular grade below the grade of colonel, or in the case of the Navy, captain, who are eligible for retirement under section 3911, 6323, or 8911 of this title, or who after two additional years or less of active service would be eligible for retirement under one of those sections and whose names are not on a list of officers recommended for promotion."

So according to 10 U.S.C. 638A in order to be considered for early retirement you must be eligible for retirement under 10 U.S.C. 3911.

Do the 101 Officers told that they have to retire at their highest enlisted grade held have a legal fight? All were within the two years of meeting eligiblity for 3911. Do they have the right by law to continue to serve until they meet eligibility then be retired as Officers?