Going from Officer to Enlisted in forced retirement

The following 3 settled cases the soldiers were enlisted at the end of their military service of 20 years or more. Because they had held a commission for 10 years during their 20 year military career, the member is immediately advanced on the retired list at their highest rank satisfactorily held. Because they are qualified for the officer retirement. Read 10 USC3911. it is plainly written and easily understood, nothing ambiguous. Justification for these cases is 10 USC 3911 and 10 USC 1370.

From the Http://boards.law.af.mil website,SETTLED AGDRB CASES.
AR [login to see]
member who entered service before September 8, 1980
The evidence of record confirms that the applicant was discharged from his enlisted active duty status for the purpose of retirement in his commissioned officer status. It also verifies that he was placed on the Retired List in the highest commissioned officer rank and pay grade that he held, and in which he satisfactorily served while on active duty for not less than six months, which was CPT/0-3.

AR [login to see] 6
member who entered service before September 8, 1980
On 30 April 1993, he was honorably REFRAD in the pay grade of E-6 and was transferred to the USAR Control Group (Retired) in the rank of captain.
Notwithstanding the advancement indicated on his retirement orders, advancement on the Retired List is only authorized when the member has satisfactorily served on active duty in a higher pay grade. The evidence of record confirms the highest rank and pay grade in which the applicant satisfactorily served on active duty was CPT, and he was appropriately placed on the Retired List in that rank and pay grade.

DOCKET NUMBER:AR [login to see]
member who entered service before September 8, 1980
The applicant s records contain a copy of DA Form 2339 (Application for Voluntary Retirement), dated 7October 1988, which shows the applicants current grade/pay grade as SSG/E-6and the highest grade held on active duty and branch of service as CPT/US Army. She was placed on the Retired List on 30June 1989 in the rank and pay grade of CPT/0-3. She had served 20 years and 9 days of total active service.

3.) FROM: DoD 7000.14-R Financial Management Regulation Volume 7B, Chapter 3 *March 2013 3-7
0301 BASIC COMPUTATION
030101. General
B. Retired Pay Multiplier1. In computing retired or retainer pay, other than for disability or nonregular service retirement, the retired pay or retainer pay multiplier is the product of two and one-half percent and the member’s years of creditable service. The term “years of creditable service” means the number of years of service that are creditable to a member in computing the member’s retired or retainer pay, including credit for each full month of service in addition to full years of service. See Chapter 1, section 0103 for determining creditable years of service for computing retired pay.

Stare Decisis
Stare Decisis is the doctrine that courts will adhere to precedent in making their decisions. Stare Decisis means to “stand by things decided” in Latin.
There are settled cases from the board of corrections website: Http://boards.law.af.mil, that support that I should have been retired as an officer not an enlisted. I included in my packets for all three boards, the historic settled cases that predated my retirement in 2012. Yet my first two boards said “no he was retired correctly”. Based on what operation of law do they justify this? How do people get on these boards? They have neither the knowledge or expertise to be qualified to sit on the board in my opinion. I included Title 10 Law, Army Regs, DOD Pay Manual, Settled Board Cases and they still got it wrong.
From the Http://boards.law.af.mil website,SETTLED AGDRB CASES. CASE # Held commission for 10 years YES / NO OFFICER or Enlisted at 20yr point Retired as Officer or Enlisted Reason

NO Enlisted SFC Enlisted 10 USC 3964 wait until 30 yr point to get officer rank back

NO Enlisted SFC Enlisted 10 USC 3964 wait until 30 yr point to get officer rank back

NO Enlisted SFC Enlisted 10 USC 3964 wait until 30 yr point to get officer rank back

NO Officer Enlisted 10 USC 3964 wait until 30 yr point to get officer rank back

YES Officer Officer 10 USC 3911

YES Enlisted Officer 10 USC 3911
10 USC 1370

YES Enlisted E-6 Officer 10 USC 3911
10 USC 1370

YES Enlisted E-6 Officer 10 USC 3911
10 USC 1370

From the Http://boards.law.af.mil website,SETTLED AGDRB CASES.
AR [login to see]
member who entered service before September 8, 1980
The evidence of record confirms that the applicant was discharged from his enlisted active duty status for the purpose of retirement in his commissioned officer status. It also verifies that he was placed on the Retired List in the highest commissioned officer rank and pay grade that he held, and in which he satisfactorily served while on active duty for not less than six months, which was CPT/0-3.

AR [login to see] 6
member who entered service before September 8, 1980
On 30 April 1993, he was honorably REFRAD in the pay grade of E-6 and was transferred to the USAR Control Group (Retired) in the rank of captain.
Notwithstanding the advancement indicated on his retirement orders, advancement on the Retired List is only authorized when the member has satisfactorily served on active duty in a higher pay grade. The evidence of record confirms the highest rank and pay grade in which the applicant satisfactorily served on active duty was CPT, and he was appropriately placed on the Retired List in that rank and pay grade.

DOCKET NUMBER:AR [login to see]
member who entered service before September 8, 1980
The applicant s records contain a copy of DA Form 2339 (Application for Voluntary Retirement), dated 7October 1988, which shows the applicants current grade/pay grade as SSG/E-6 and the highest grade held on active duty and branch of service as CPT/US Army. She was placed on the Retired List on 30June 1989 in the rank and pay grade of CPT/0-3. She had served 20 years and 9 days of total active service.












MEMORANDUM OF CONSIDERATION
IN THE CASE OF:
BOARD DATE: 19 November 2002
DOCKET NUMBER: AR [login to see]
I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.
Mr. Carl W. S. Chun
Director
Mr. Joseph A. Adriance
Analyst
The following members, a quorum, were present:
Mr. John N. Slone
Chairperson
Ms. Sherri V. Ward
Member
Mr. Melvin H. Meyer
Member
The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.
The applicant requests correction of military records as stated in the application to the Board and as restated herein.
The Board considered the following evidence:
Exhibit A - Application for correction of military
records
Exhibit B - Military Personnel Records (including
advisory opinion, if any)
ABCMR Memorandum of AR [login to see]
Consideration (cont)
2
APPLICANT REQUESTS: In effect, that he receive retired pay in the highest rank and pay grade he held, which is major/0-4 (MAJ/0-4).
APPLICANT STATES: In effect, he provides retirement orders and his MAJ/0-4 promotion orders in support of his request.
EVIDENCE OF RECORD: The applicant's military records show:
On 1 July 1990, he was released from active duty (REFRAD), by reason of reduction in force (RIF). At the time, the applicant held the rank and pay grade of captain/0-3 (CPT/0-3), which he had attained on 1 April 1983, and he had completed a total of 11 years, 2 months, and 19 days of active military service in a commissioned officer status.
On 2 July 1990, applicant entered in the Regular Army (RA) in an enlisted status and reentered active duty as a sergeant/E-5 (SGT/E-5). The record shows that while serving on active duty in an enlisted status, the applicant retained a dual commissioned officer status in the United States Army Reserve (USAR). On
27 March 1992, the applicant was promoted to MAJ/04 in the USAR. However, the record shows that he never held or served on active duty in this rank and pay grade.
On 7 July 1995, the applicant’s retirement was announced in Department of the Army (DA) Orders Number S129-9, issued by the US Total Army Personnel Command (PERSCOM), Alexandria, Virginia. These orders directed the applicant’s retirement from active service and his discharge from his enlisted status on 31 October 1995. It also directed his placement on the Retired List the following day, 1 November 1995, in the highest rank and pay grade he held and in which he satisfactorily served while on active duty, which was CPT/0-3.
The DD Form 214 issued to the applicant on the date of REFRAD, 31 October 1995, shows that he was separated under the provisions of chapter 12, Army Regulation 635-200, by reason length of service retirement.
Title 10 of the United States Code, section 1370 (10 USC 1370) provides the legal authority for retirement in the highest grade held satisfactorily for commissioned officers. It states, in pertinent part, that a commissioned officer who retires under any provision of law shall be retired in the highest grade in which they served on active duty satisfactorily, as determined by the Secretary of the military department concerned, for not less than six months.


ABCMR Memorandum of AR [login to see]
Consideration (cont)
3
Title 10 of the United States Code, section 3964 provides the legal authority for advancement of warrant officers and enlisted members on the Retired List. It states, in pertinent part, that warrant officer and enlisted members of the Army are entitled, when their active service plus their service on the retired list totals 30 years, to be advanced on the Retired List to the highest grade in which they served on active duty satisfactorily.
DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:
1. The Board notes the applicant’s contention that he should receive retired pay in the highest rank and pay grade he held, which was MAJ/0-4. However, it finds insufficient evidence to support this claim.
2. By law, commissioned officers are placed on the Retired List in the highest commissioned officer rank and pay grade in which they satisfactorily served on active duty for not less than six months. Further, advancement of enlisted members to a commissioned officer rank and pay grade on the Retired List requires that the member actually held and satisfactorily served in that higher commissioned officer grade while on active duty. Dual status service in a higher commissioned officer rank and pay grade in the USAR, while serving on active duty in an enlisted status, does not meet the satisfactory service provisions of the law.
3. The evidence of record confirms that the applicant was discharged from his enlisted active duty status for the purpose of retirement in his commissioned officer status. It also verifies that he was placed on the Retired List in the highest commissioned officer rank and pay grade that he held, and in which he satisfactorily served while on active duty for not less than six months, which was CPT/0-3.
4. The evidence of record further shows that while serving on active duty in an enlisted status, the applicant was promoted to MAJ/0-4 in the USAR. However, it also confirms that he never actually held or served in that rank and pay grade while he was on active duty. Thus, the Board finds that the applicant’s service as a MAJ/0-4 does not meet the satisfactory service provisions of the law. Therefore, it concludes that the requested relief is not warranted in this case.
5. In view of the foregoing, there is no basis for granting the applicant's request.
ABCMR Memorandum of AR [login to see]
Consideration (cont)
4
DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.
BOARD VOTE:
________ ________ ________ GRANT
________ ________ ________ GRANT FORMAL HEARING
__JNS __ _ SVW _ __MHM__ DENY APPLICATION
Carl W. S. Chun
Director, Army Board for Correction
of Military Records
ABCMR Memorandum of AR [login to see]
Consideration (cont)
5
INDEX
CASE ID
AR [login to see]
SUFFIX
RECON
DATE BOARDED
2002/11/19
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
1995/10/31
DISCHARGE AUTHORITY
AR 635-200
DISCHARGE REASON
Retirement
BOARD DECISION
DENY
REVIEW AUTHORITY
ISSUES 1. [login to see]
2.
3.
4.
5. 6.
IN THE CASE OF:
BOARD DATE: 16 SEPTEMBER 2008
DOCKET NUMBER: AR [login to see] 6
THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:
1. Application for correction of military records (with supporting documents provided, if any).
2. Military Personnel Records and advisory opinions (if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests that his records be corrected to reflect his retired rank as a major (MAJ) instead of captain (CPT).
2. The applicant states, in effect, that he was promoted to the rank of major in the United States Army Reserve (USAR) and should have been retired in that rank.
3. The applicant provides a copy of his Department of Veterans Affairs (VA) Rating Decision and copies of his reports of separation (DD Form 214).
CONSIDERATION OF EVIDENCE:
1. Title 10, U.S. 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 Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant was inducted in Coral Gables, Florida on 14 July 1970 and served on active duty as a field artillery crewman until he was honorably released from active duty (REFRAD) in the pay grade of E-5 on 13 July 1972 and was transferred to the United States Army Reserve (USAR) Control Group (Annual Training).
3. He enlisted in the Regular Army on 16 June 1975 and served until he was honorably discharged on 25 August 1977 to accept a commission.
4. On 26 August 1977, he was commissioned as a USAR artillery second lieutenant with a concurrent call to active duty. He was subsequently qualified as a rotary wing aviator and branch transferred to aviation. He was promoted to the rank of captain (CPT) on 13 May 1981.
5. On 1 September 1988, he was honorably REFRAD at Fort Sill, Oklahoma due to failure of selection for permanent promotion. He had served 15 years, 4 months, and 16 days of total active service and was transferred to the USAR Control Group (Reinforcement) in the rank of CPT. He was paid $30,000 in separation pay benefits and was informed that he had the right to enlist in the Regular Army.
6. On 2 September 1988, he enlisted in the Regular Army in the pay grade of E-5, for a period of 5 years at Fort Sill, Oklahoma and remained assigned to Fort Sill for his entire enlistment. He was promoted to the pay grade of E-6 on 1 September 1991.
7. He also maintained a dual-component status as a regular army staff sergeant and a USAR Major (he was promoted to the rank of major in the USAR on 30 May 1990, with a date of rank of 3 September 1988).
8. On 10 April 1992, the applicant submitted his request for voluntary retirement to be effective 1 May 1993. He signed his application as a USAR Major at the time he was serving as a Regular Army staff sergeant.
9. The DA Form 3713 (Data for Retired Pay) contained in his record indicates that the applicant’s retired grade and pay as a captain was determined in accordance with Section 1370, Title 10, United States Code and that he was serving on active duty in the pay grade of E-6.
10. On 8 July 1992, orders were published by the Total Army Personnel Command (TAPC) that directed his REFRAD effective 30 April 1993 and placement on the Retired List in the rank of MAJ.
11. On 30 April 1993, he was honorably REFRAD in the pay grade of E-6 and was transferred to the USAR Control Group (Retired) in the rank of captain. However, his orders and DD Form 214 incorrectly reflect that he was REFRAD in the pay grade of O-4 (major).
12. A review of the applicant’s official record fails to show any evidence that the applicant ever served on active duty as a major.
13. In the processing of this case a staff advisory opinion was obtained from the Human Resources Command – St. Louis (HRC-STL) which opines that the highest rank in which the applicant served on active duty was that of a CPT and he is currently being paid in that rank. Officials at the HRC-STL also opined that the applicant’s DD Form 214 should be corrected to reflect his rank at the time of his REFRAD as a SSG/E-6 instead of a major/O-4. The advisory opinion was provided to the applicant for comment and to date no response has been received by the staff of the Board.
14. Title 10 of the United States Code, section 1370 (10 USC 1370) provides the legal authority for retirement in the highest grade held satisfactorily for commissioned officers. It states, in pertinent part, that a commissioned officer who retires under any provision of law shall be retired in the highest grade in which they served on active duty satisfactorily, as determined by the Secretary of the military department concerned, for not less than six months.
15. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 12 sets policies and procedures for voluntary retirement of Soldiers because of length of service. Paragraph 12-3b states, in pertinent part, that retirement will be in the regular or reserve grade the Soldier holds on the date of retirement as directed in Title 10 of the United States Code, section 3961 (10 USC 3961).
16. Paragraph 12-6 (Advancement on the Retired List) of the regulation contains guidance on the advancement of enlisted Soldiers on the Retired List. It indicates that advancement on the Retired List is limited to retired Soldiers who held a higher grade and successfully served in that higher grade while on active duty. There are no other provisions of law or regulation that provide for the advancement of an enlisted member who served, as a USAR commissioned officer, in a dual status.
DISCUSSION AND CONCLUSIONS:
1. The applicant's claim that he is entitled to be advanced to the rank and pay grade of CPT/O-3E on the Retired List and the supporting evidence he provided was carefully considered. However, the evidence of record shows that although he served on active duty as a CPT, he never served on active duty as a commissioned officer in the rank of MAJ/O-
4. Rather, his service on active duty after his REFRAD as a USAR CPT was entirely served as an enlisted member of the Regular Army.
2. Notwithstanding the advancement indicated on his retirement orders, advancement on the Retired List is only authorized when the member has satisfactorily served on active duty in a higher pay grade. The evidence of record confirms the highest rank and pay grade in which the applicant satisfactorily served on active duty was CPT, and he was appropriately placed on the Retired List in that rank and pay grade. His dual status as a USAR MAJ does not fulfill this active duty satisfactory service requirement necessary for advancement on the Retired List, and as a result, it is concluded the requested relief is not warranted in this case.
3. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.
4. It has been noted that the applicant’s DD Form 214 incorrectly reflects that he was REFRAD as a MAJ O-4 and further indicates that he was serving as a commissioned officer at the time of his REFRAD, when in fact he was serving on active duty as a SSG/E-6 and should have been REFRAD in that grade and then placed on the Retired List in the rank of CPT. However, it has long been the policy of this Board that it will not direct an action that will appear to make an applicant worse off than when they applied. Therefore, the Board will not direct such corrections be made unless the applicant requests the actions in writing.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
__XXX __ __XXX__ __XXX__ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.
2. The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States. The applicant and all Americans should be justifiably proud of his service in arms.
___ XXX ___
CHAIRPERSON
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.
ABCMR Record of Proceedings (cont) AR [login to see] 6
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR [login to see] 6
5
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1





MEMORANDUM OF CONSIDERATION
IN THE CASE OF: MORE THAN 10 YRS AFCS
BOARD DATE:
DOCKET NUMBER: AR [login to see]
I certify that hereinafter is recorded the record of consideration of the Army Board for Correction
of Military Records in the case of the above-named individual.
Mr. Carl W. S. Chun Director
Ms. Joyce A. Wright Analyst
The following members, a quorum, were present:
Mr. Walter T. Morrison Chairperson
Mr. Curtis L. Greenway Member
Mr. Arthur Omartian Member
The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call
of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application
and the available military records pertinent to the corrective action requested were reviewed to
determine whether to authorize a formal hearing, recommend that the records be corrected without a
formal hearing, or to deny the application without a formal hearing if it is determined that insufficient
relevant evidence has been presented to demonstrate the existence of probable material error or
injustice.
The applicant requests correction of military records as stated in the application to the Board
and as restated herein.
The Board considered the following evidence:
Exhibit A - Application for correction of military
records
Exhibit B - Military Personnel Records (including
advisory opinion, if any)
ABCMR Memorandum of AR [login to see]
Consideration (cont)
2
APPLICANT REQUESTS: In effect, that she be advanced on the Retired List to the rank of major
(MAJ), pay grade 0-4.
APPLICANT STATES: She was promoted to major in the US Army Reserve (USAR) in April 1987, and
retired as a captain in June 1989. She also states that it has been 11 years since she retired and
that she should be advanced on the Retired List to the rank of major. In support of her application, she
submits two DD Forms 214 (Certificate of Release or Discharge from Active Duty) and a copy of her
retirement orders.
EVIDENCE OF RECORD: The applicant's military records show she enlisted on 22 June 1969. She continued to serve until she was honorably discharged on 14 December 1972, in order to accept an
appointment in the USAR.
The applicant served as a Reserve officer on active duty from 15 December 1972 to 1 January 1985.
She was released from active duty in the rank of captain (CPT) under the provisions of Army Regulation
635-100, for failure of selection, permanent promotion.
On 2 January 1985, the applicant reenlisted in the Regular Army in an enlisted status, in the rank of
sergeant (SGT/E-5) for a period of 4 years.
The applicant’s records contain a copy of a promotion letter, dated 3 December 1987, which shows that
the applicant was promoted to the rank of major/0-4 in the USAR on 18 April 1986, while serving on
active duty as a staff sergeant (SSG).
The applicant’s records contain a copy of DA Form 2339 (Application for Voluntary Retirement), dated 7 October 1988, which shows the applicant’s current grade/pay grade as SSG/E-6 and the highest grade held on active duty and branch of service as CPT/US Army. She was placed on the Retired List on 30 June 1989 in the rank and pay grade of CPT/0-3. She had served 20 years and 9 days of total active service.
Under the provisions of Army Regulations 600-39, the Dual Component Program, individuals serving in
the Regular Army in an enlisted or warrant officer status were allowed to hold concurrent commissioned
officer grades in the USAR.
Title 10, United States Code, section 1370 (d) provides that 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, an individual must have served satisfactorily in that grade as a Reserve commissioned
officer in an active status, or in a retired status on active duty, for not less than six consecutive months.
Title 10, United States Code, section 3911, states that Regular or Reserve commissioned officers may retire as commissioned officers if they have at least 20 years of service, 10 years of which
have been active duty service as a commissioned officer. The law provides no provisions for
placing a commissioned officer on the Retired List in a rank he was promoted to in the USAR while
serving on active duty in an enlisted status in a dual component program.
ABCMR Memorandum of AR [login to see]
Consideration (cont)
3
Title 10, United States Code, section 3964, provides that a retired enlisted member or warrant officer 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 be advanced on the Retired List to the highest grade in
which he served on active duty satisfactorily. Rank placement on the Retired List is based solely on the
highest rank in which a member satisfactorily served on active duty. USAR service in an inactive status
while a member of a dual component program does not satisfy this active duty satisfactory service
provision of the law.
DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant,
together with the evidence of record, applicable law and regulations, it is concluded:
1. The evidence of record shows that the applicant was promoted to MAJ/0-4
on 18 April 1986, which was attained while serving on active duty in the Regular Army in an enlisted
status as part of a dual component program. It also clearly establishes the she never served on active
duty in the rank and pay grade of MAJ/0-4.
2. The Board finds no evidence that the applicant served six consecutive months on active duty as a
MAJ/0-4 to be eligible for advancement on the Retired List in accordance with statutory provisions.
Therefore, the applicant is not entitled to be advance to the rank and pay grade of MAJ/0-4.
3. In order to justify correction of a military record the applicant must show to the satisfaction of the
Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has
failed to submit evidence that would satisfy this requirement.
4. In view of the foregoing, there is no basis for granting the applicant's request.
DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the
existence of probable error or injustice.
BOARD VOTE:
________ ________ ________ GRANT
________ ________ ________ GRANT FORMAL HEARING
__wm____ ___cg___ ___ao___ DENY APPLICATION
Carl W. S. Chun
Director, Army Board for Correction
of Military Records
ABCMR Memorandum of AR [login to see]
Consideration (cont)
4
SEE AR [login to see] FILE
10 USC 3926
I RETIRED 2012 NO DUAL PROG
INDEX
CASE ID AR [login to see]
SUFFIX
RECON
DATE BOARDED 20011101
TYPE OF DISCHARGE HD
DATE OF DISCHARGE 19890630
DISCHARGE AUTHORITY AR 635-200 c, 12
DISCHARGE REASON
BOARD DECISION DENY
REVIEW AUTHORITY
ISSUES 1. 319
2.
3.
4.
5.
6.

Stare Decisis
Stare Decisis is the doctrine that courts will adhere to precedent in making their decisions. Stare Decisis means to “stand by things decided” in Latin.
There are settled cases from the board of corrections website: Http://boards.law.af.mil, that support that I should have been retired as an officer not an enlisted. I included in my packets for all three boards, the historic settled cases that predated my retirement in 2012. Yet my first two boards said “no he was retired correctly”. Based on what operation of law do they justify this? How do people get on these boards? They have neither the knowledge or expertise to be qualified to sit on the board in my opinion. I included Title 10 Law, Army Regs, DOD Pay Manual, Settled Board Cases and they still got it wrong.
From the Http://boards.law.af.mil website,SETTLED AGDRB CASES. CASE # Held commission for 10 years YES / NO OFFICER or Enlisted at 20yr point Retired as Officer or Enlisted Reason

NO Enlisted SFC Enlisted 10 USC 3964 wait until 30 yr point to get officer rank back

NO Enlisted SFC Enlisted 10 USC 3964 wait until 30 yr point to get officer rank back

NO Enlisted SFC Enlisted 10 USC 3964 wait until 30 yr point to get officer rank back

NO Officer Enlisted 10 USC 3964 wait until 30 yr point to get officer rank back

YES Officer Officer 10 USC 3911

YES Enlisted Officer 10 USC 3911
10 USC 1370

YES Enlisted E-6 Officer 10 USC 3911
10 USC 1370

YES Enlisted E-6 Officer 10 USC 3911
10 USC 1370

From the Http://boards.law.af.mil website,SETTLED AGDRB CASES.
AR [login to see]
member who entered service before September 8, 1980
The evidence of record confirms that the applicant was discharged from his enlisted active duty status for the purpose of retirement in his commissioned officer status. It also verifies that he was placed on the Retired List in the highest commissioned officer rank and pay grade that he held, and in which he satisfactorily served while on active duty for not less than six months, which was CPT/0-3.

AR [login to see] 6
member who entered service before September 8, 1980
On 30 April 1993, he was honorably REFRAD in the pay grade of E-6 and was transferred to the USAR Control Group (Retired) in the rank of captain.
Notwithstanding the advancement indicated on his retirement orders, advancement on the Retired List is only authorized when the member has satisfactorily served on active duty in a higher pay grade. The evidence of record confirms the highest rank and pay grade in which the applicant satisfactorily served on active duty was CPT, and he was appropriately placed on the Retired List in that rank and pay grade.

DOCKET NUMBER:AR [login to see]
member who entered service before September 8, 1980
The applicant s records contain a copy of DA Form 2339 (Application for Voluntary Retirement), dated 7October 1988, which shows the applicants current grade/pay grade as SSG/E-6 and the highest grade held on active duty and branch of service as CPT/US Army. She was placed on the Retired List on 30June 1989 in the rank and pay grade of CPT/0-3. She had served 20 years and 9 days of total active service.












MEMORANDUM OF CONSIDERATION
IN THE CASE OF:
BOARD DATE: 19 November 2002
DOCKET NUMBER: AR [login to see]
I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.
Mr. Carl W. S. Chun
Director
Mr. Joseph A. Adriance
Analyst
The following members, a quorum, were present:
Mr. John N. Slone
Chairperson
Ms. Sherri V. Ward
Member
Mr. Melvin H. Meyer
Member
The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.
The applicant requests correction of military records as stated in the application to the Board and as restated herein.
The Board considered the following evidence:
Exhibit A - Application for correction of military
records
Exhibit B - Military Personnel Records (including
advisory opinion, if any)
ABCMR Memorandum of AR [login to see]
Consideration (cont)
2
APPLICANT REQUESTS: In effect, that he receive retired pay in the highest rank and pay grade he held, which is major/0-4 (MAJ/0-4).
APPLICANT STATES: In effect, he provides retirement orders and his MAJ/0-4 promotion orders in support of his request.
EVIDENCE OF RECORD: The applicant's military records show:
On 1 July 1990, he was released from active duty (REFRAD), by reason of reduction in force (RIF). At the time, the applicant held the rank and pay grade of captain/0-3 (CPT/0-3), which he had attained on 1 April 1983, and he had completed a total of 11 years, 2 months, and 19 days of active military service in a commissioned officer status.
On 2 July 1990, applicant entered in the Regular Army (RA) in an enlisted status and reentered active duty as a sergeant/E-5 (SGT/E-5). The record shows that while serving on active duty in an enlisted status, the applicant retained a dual commissioned officer status in the United States Army Reserve (USAR). On
27 March 1992, the applicant was promoted to MAJ/04 in the USAR. However, the record shows that he never held or served on active duty in this rank and pay grade.
On 7 July 1995, the applicant’s retirement was announced in Department of the Army (DA) Orders Number S129-9, issued by the US Total Army Personnel Command (PERSCOM), Alexandria, Virginia. These orders directed the applicant’s retirement from active service and his discharge from his enlisted status on 31 October 1995. It also directed his placement on the Retired List the following day, 1 November 1995, in the highest rank and pay grade he held and in which he satisfactorily served while on active duty, which was CPT/0-3.
The DD Form 214 issued to the applicant on the date of REFRAD, 31 October 1995, shows that he was separated under the provisions of chapter 12, Army Regulation 635-200, by reason length of service retirement.
Title 10 of the United States Code, section 1370 (10 USC 1370) provides the legal authority for retirement in the highest grade held satisfactorily for commissioned officers. It states, in pertinent part, that a commissioned officer who retires under any provision of law shall be retired in the highest grade in which they served on active duty satisfactorily, as determined by the Secretary of the military department concerned, for not less than six months.


ABCMR Memorandum of AR [login to see]
Consideration (cont)
3
Title 10 of the United States Code, section 3964 provides the legal authority for advancement of warrant officers and enlisted members on the Retired List. It states, in pertinent part, that warrant officer and enlisted members of the Army are entitled, when their active service plus their service on the retired list totals 30 years, to be advanced on the Retired List to the highest grade in which they served on active duty satisfactorily.
DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:
1. The Board notes the applicant’s contention that he should receive retired pay in the highest rank and pay grade he held, which was MAJ/0-4. However, it finds insufficient evidence to support this claim.
2. By law, commissioned officers are placed on the Retired List in the highest commissioned officer rank and pay grade in which they satisfactorily served on active duty for not less than six months. Further, advancement of enlisted members to a commissioned officer rank and pay grade on the Retired List requires that the member actually held and satisfactorily served in that higher commissioned officer grade while on active duty. Dual status service in a higher commissioned officer rank and pay grade in the USAR, while serving on active duty in an enlisted status, does not meet the satisfactory service provisions of the law.
3. The evidence of record confirms that the applicant was discharged from his enlisted active duty status for the purpose of retirement in his commissioned officer status. It also verifies that he was placed on the Retired List in the highest commissioned officer rank and pay grade that he held, and in which he satisfactorily served while on active duty for not less than six months, which was CPT/0-3.
4. The evidence of record further shows that while serving on active duty in an enlisted status, the applicant was promoted to MAJ/0-4 in the USAR. However, it also confirms that he never actually held or served in that rank and pay grade while he was on active duty. Thus, the Board finds that the applicant’s service as a MAJ/0-4 does not meet the satisfactory service provisions of the law. Therefore, it concludes that the requested relief is not warranted in this case.
5. In view of the foregoing, there is no basis for granting the applicant's request.
ABCMR Memorandum of AR [login to see]
Consideration (cont)
4
DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.
BOARD VOTE:
________ ________ ________ GRANT
________ ________ ________ GRANT FORMAL HEARING
__JNS __ _ SVW _ __MHM__ DENY APPLICATION
Carl W. S. Chun
Director, Army Board for Correction
of Military Records
ABCMR Memorandum of AR [login to see]
Consideration (cont)
5
INDEX
CASE ID
AR [login to see]
SUFFIX
RECON
DATE BOARDED
2002/11/19
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
1995/10/31
DISCHARGE AUTHORITY
AR 635-200
DISCHARGE REASON
Retirement
BOARD DECISION
DENY
REVIEW AUTHORITY
ISSUES 1. [login to see]
2.
3.
4.
5. 6.
IN THE CASE OF:
BOARD DATE: 16 SEPTEMBER 2008
DOCKET NUMBER: AR [login to see] 6
THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:
1. Application for correction of military records (with supporting documents provided, if any).
2. Military Personnel Records and advisory opinions (if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests that his records be corrected to reflect his retired rank as a major (MAJ) instead of captain (CPT).
2. The applicant states, in effect, that he was promoted to the rank of major in the United States Army Reserve (USAR) and should have been retired in that rank.
3. The applicant provides a copy of his Department of Veterans Affairs (VA) Rating Decision and copies of his reports of separation (DD Form 214).
CONSIDERATION OF EVIDENCE:
1. Title 10, U.S. 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 Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant was inducted in Coral Gables, Florida on 14 July 1970 and served on active duty as a field artillery crewman until he was honorably released from active duty (REFRAD) in the pay grade of E-5 on 13 July 1972 and was transferred to the United States Army Reserve (USAR) Control Group (Annual Training).
3. He enlisted in the Regular Army on 16 June 1975 and served until he was honorably discharged on 25 August 1977 to accept a commission.
4. On 26 August 1977, he was commissioned as a USAR artillery second lieutenant with a concurrent call to active duty. He was subsequently qualified as a rotary wing aviator and branch transferred to aviation. He was promoted to the rank of captain (CPT) on 13 May 1981.
5. On 1 September 1988, he was honorably REFRAD at Fort Sill, Oklahoma due to failure of selection for permanent promotion. He had served 15 years, 4 months, and 16 days of total active service and was transferred to the USAR Control Group (Reinforcement) in the rank of CPT. He was paid $30,000 in separation pay benefits and was informed that he had the right to enlist in the Regular Army.
6. On 2 September 1988, he enlisted in the Regular Army in the pay grade of E-5, for a period of 5 years at Fort Sill, Oklahoma and remained assigned to Fort Sill for his entire enlistment. He was promoted to the pay grade of E-6 on 1 September 1991.
7. He also maintained a dual-component status as a regular army staff sergeant and a USAR Major (he was promoted to the rank of major in the USAR on 30 May 1990, with a date of rank of 3 September 1988).
8. On 10 April 1992, the applicant submitted his request for voluntary retirement to be effective 1 May 1993. He signed his application as a USAR Major at the time he was serving as a Regular Army staff sergeant.
9. The DA Form 3713 (Data for Retired Pay) contained in his record indicates that the applicant’s retired grade and pay as a captain was determined in accordance with Section 1370, Title 10, United States Code and that he was serving on active duty in the pay grade of E-6.
10. On 8 July 1992, orders were published by the Total Army Personnel Command (TAPC) that directed his REFRAD effective 30 April 1993 and placement on the Retired List in the rank of MAJ.
11. On 30 April 1993, he was honorably REFRAD in the pay grade of E-6 and was transferred to the USAR Control Group (Retired) in the rank of captain. However, his orders and DD Form 214 incorrectly reflect that he was REFRAD in the pay grade of O-4 (major).
12. A review of the applicant’s official record fails to show any evidence that the applicant ever served on active duty as a major.
13. In the processing of this case a staff advisory opinion was obtained from the Human Resources Command – St. Louis (HRC-STL) which opines that the highest rank in which the applicant served on active duty was that of a CPT and he is currently being paid in that rank. Officials at the HRC-STL also opined that the applicant’s DD Form 214 should be corrected to reflect his rank at the time of his REFRAD as a SSG/E-6 instead of a major/O-4. The advisory opinion was provided to the applicant for comment and to date no response has been received by the staff of the Board.
14. Title 10 of the United States Code, section 1370 (10 USC 1370) provides the legal authority for retirement in the highest grade held satisfactorily for commissioned officers. It states, in pertinent part, that a commissioned officer who retires under any provision of law shall be retired in the highest grade in which they served on active duty satisfactorily, as determined by the Secretary of the military department concerned, for not less than six months.
15. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 12 sets policies and procedures for voluntary retirement of Soldiers because of length of service. Paragraph 12-3b states, in pertinent part, that retirement will be in the regular or reserve grade the Soldier holds on the date of retirement as directed in Title 10 of the United States Code, section 3961 (10 USC 3961).
16. Paragraph 12-6 (Advancement on the Retired List) of the regulation contains guidance on the advancement of enlisted Soldiers on the Retired List. It indicates that advancement on the Retired List is limited to retired Soldiers who held a higher grade and successfully served in that higher grade while on active duty. There are no other provisions of law or regulation that provide for the advancement of an enlisted member who served, as a USAR commissioned officer, in a dual status.
DISCUSSION AND CONCLUSIONS:
1. The applicant's claim that he is entitled to be advanced to the rank and pay grade of CPT/O-3E on the Retired List and the supporting evidence he provided was carefully considered. However, the evidence of record shows that although he served on active duty as a CPT, he never served on active duty as a commissioned officer in the rank of MAJ/O-
4. Rather, his service on active duty after his REFRAD as a USAR CPT was entirely served as an enlisted member of the Regular Army.
2. Notwithstanding the advancement indicated on his retirement orders, advancement on the Retired List is only authorized when the member has satisfactorily served on active duty in a higher pay grade. The evidence of record confirms the highest rank and pay grade in which the applicant satisfactorily served on active duty was CPT, and he was appropriately placed on the Retired List in that rank and pay grade. His dual status as a USAR MAJ does not fulfill this active duty satisfactory service requirement necessary for advancement on the Retired List, and as a result, it is concluded the requested relief is not warranted in this case.
3. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.
4. It has been noted that the applicant’s DD Form 214 incorrectly reflects that he was REFRAD as a MAJ O-4 and further indicates that he was serving as a commissioned officer at the time of his REFRAD, when in fact he was serving on active duty as a SSG/E-6 and should have been REFRAD in that grade and then placed on the Retired List in the rank of CPT. However, it has long been the policy of this Board that it will not direct an action that will appear to make an applicant worse off than when they applied. Therefore, the Board will not direct such corrections be made unless the applicant requests the actions in writing.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
__XXX __ __XXX__ __XXX__ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.
2. The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States. The applicant and all Americans should be justifiably proud of his service in arms.
___ XXX ___
CHAIRPERSON
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.
ABCMR Record of Proceedings (cont) AR [login to see] 6
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR [login to see] 6
5
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1





MEMORANDUM OF CONSIDERATION
IN THE CASE OF: MORE THAN 10 YRS AFCS
BOARD DATE:
DOCKET NUMBER: AR [login to see]
I certify that hereinafter is recorded the record of consideration of the Army Board for Correction
of Military Records in the case of the above-named individual.
Mr. Carl W. S. Chun Director
Ms. Joyce A. Wright Analyst
The following members, a quorum, were present:
Mr. Walter T. Morrison Chairperson
Mr. Curtis L. Greenway Member
Mr. Arthur Omartian Member
The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call
of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application
and the available military records pertinent to the corrective action requested were reviewed to
determine whether to authorize a formal hearing, recommend that the records be corrected without a
formal hearing, or to deny the application without a formal hearing if it is determined that insufficient
relevant evidence has been presented to demonstrate the existence of probable material error or
injustice.
The applicant requests correction of military records as stated in the application to the Board
and as restated herein.
The Board considered the following evidence:
Exhibit A - Application for correction of military
records
Exhibit B - Military Personnel Records (including
advisory opinion, if any)
ABCMR Memorandum of AR [login to see]
Consideration (cont)
2
APPLICANT REQUESTS: In effect, that she be advanced on the Retired List to the rank of major
(MAJ), pay grade 0-4.
APPLICANT STATES: She was promoted to major in the US Army Reserve (USAR) in April 1987, and
retired as a captain in June 1989. She also states that it has been 11 years since she retired and
that she should be advanced on the Retired List to the rank of major. In support of her application, she
submits two DD Forms 214 (Certificate of Release or Discharge from Active Duty) and a copy of her
retirement orders.
EVIDENCE OF RECORD: The applicant's military records show she enlisted on 22 June 1969. She continued to serve until she was honorably discharged on 14 December 1972, in order to accept an
appointment in the USAR.
The applicant served as a Reserve officer on active duty from 15 December 1972 to 1 January 1985.
She was released from active duty in the rank of captain (CPT) under the provisions of Army Regulation
635-100, for failure of selection, permanent promotion.
On 2 January 1985, the applicant reenlisted in the Regular Army in an enlisted status, in the rank of
sergeant (SGT/E-5) for a period of 4 years.
The applicant’s records contain a copy of a promotion letter, dated 3 December 1987, which shows that
the applicant was promoted to the rank of major/0-4 in the USAR on 18 April 1986, while serving on
active duty as a staff sergeant (SSG).
The applicant’s records contain a copy of DA Form 2339 (Application for Voluntary Retirement), dated 7 October 1988, which shows the applicant’s current grade/pay grade as SSG/E-6 and the highest grade held on active duty and branch of service as CPT/US Army. She was placed on the Retired List on 30 June 1989 in the rank and pay grade of CPT/0-3. She had served 20 years and 9 days of total active service.
Under the provisions of Army Regulations 600-39, the Dual Component Program, individuals serving in
the Regular Army in an enlisted or warrant officer status were allowed to hold concurrent commissioned
officer grades in the USAR.
Title 10, United States Code, section 1370 (d) provides that 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, an individual must have served satisfactorily in that grade as a Reserve commissioned
officer in an active status, or in a retired status on active duty, for not less than six consecutive months.
Title 10, United States Code, section 3911, states that Regular or Reserve commissioned officers may retire as commissioned officers if they have at least 20 years of service, 10 years of which
have been active duty service as a commissioned officer. The law provides no provisions for
placing a commissioned officer on the Retired List in a rank he was promoted to in the USAR while
serving on active duty in an enlisted status in a dual component program.
ABCMR Memorandum of AR [login to see]
Consideration (cont)
3
Title 10, United States Code, section 3964, provides that a retired enlisted member or warrant officer 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 be advanced on the Retired List to the highest grade in
which he served on active duty satisfactorily. Rank placement on the Retired List is based solely on the
highest rank in which a member satisfactorily served on active duty. USAR service in an inactive status
while a member of a dual component program does not satisfy this active duty satisfactory service
provision of the law.
DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant,
together with the evidence of record, applicable law and regulations, it is concluded:
1. The evidence of record shows that the applicant was promoted to MAJ/0-4
on 18 April 1986, which was attained while serving on active duty in the Regular Army in an enlisted
status as part of a dual component program. It also clearly establishes the she never served on active
duty in the rank and pay grade of MAJ/0-4.
2. The Board finds no evidence that the applicant served six consecutive months on active duty as a
MAJ/0-4 to be eligible for advancement on the Retired List in accordance with statutory provisions.
Therefore, the applicant is not entitled to be advance to the rank and pay grade of MAJ/0-4.
3. In order to justify correction of a military record the applicant must show to the satisfaction of the
Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has
failed to submit evidence that would satisfy this requirement.
4. In view of the foregoing, there is no basis for granting the applicant's request.
DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the
existence of probable error or injustice.
BOARD VOTE:
________ ________ ________ GRANT
________ ________ ________ GRANT FORMAL HEARING
__wm____ ___cg___ ___ao___ DENY APPLICATION
Carl W. S. Chun
Director, Army Board for Correction
of Military Records
ABCMR Memorandum of AR [login to see]
Consideration (cont)
4
SEE AR [login to see] FILE
10 USC 3926
I RETIRED 2012 NO DUAL PROG
INDEX
CASE ID AR [login to see]
SUFFIX
RECON
DATE BOARDED 20011101
TYPE OF DISCHARGE HD
DATE OF DISCHARGE 19890630
DISCHARGE AUTHORITY AR 635-200 c, 12
DISCHARGE REASON
BOARD DECISION DENY
REVIEW AUTHORITY
ISSUES 1. 319
2.
3.
4.
5.
6.

That is what 10 USC 3964 is for. If you don't hold your commission for 10 years under 10 USC 3911, you retire as enlisted and 10 years later ask for your highest rank back from the board of correction. But if you held a commission for 10 years you qualify for the officer retirement and retire at you highest rank satisfactorily held. 10 USC 1370. There are settled cases from the board that have settled this and yet the Subject Matter Geniuses at G-1, HRC and the RSO(s) don't understand this.

Have you held your commission for 10 or more years?

Sure have knew a soldier many years ago who was a Major and after Vietnam was rifted and was an E-7. One good thing about this is that as long as you served honorably you would retire at your highest rank!

Depends on who does your paperwork. I retired from Ft Riley, KS in 2012 and the RSO ,HRC and everyone in between got it wrong even when they had my record and me telling them to read it. It took me 39 months of retirement to get my officer retirement. I hired a lawyer, asked for help from all the service organizations, Senators, Representatives, all useless

It was common during the drawdown of the 1970s.

My grandfather did this for two years in the Air Force due to a RIF. Retired as an O-5, but did last two years as an E-5.