To All,
This is my retirement nightmare:
My case is not PEB, but a 20yr voluntary retirement. I went through Ft Riley, KS. for my last 10 months in Army
and retired. I am still fighting to retire as an officer and not as an SSG. I have been retired 18 months and still fighting the well meaning people at HRC, ARNG, RSO. My career is similar to what NWLIVEWIRE described in their post.
•I enlisted in the U. S. Navy in SEP 1974. I became a career naval officer MAY 1981, USN-regular navy, with over ten years of commissioned service, until JAN 1992.
• After joining the MN ARNG, 2004, I voluntary retired 01MAR2012. I did two tours in Iraq and 10 months at Ft Riley and ended 20 plus years of active federal service. RSO Ft Riley and HRC retired me as an as an enlisted man with over 20 years active Federal Service. I had all the appointment orders and documentation to support my honorable Naval Service and Honorable military service. I feel like I was railroaded out of the Army.
My two congress people here in MN have been working on this for 6 months with no joy.
I finally had someone at HRC tell me to fill out an SF 180 and email it to
[email protected].
I feel that my retirement process went from a contract of adhesion to the classic story of
Everybody, Somebody, Anybody, And Nobody.
This is a little story about four people named Everybody, Somebody, Anybody, and Nobody. There was an important job to be done and Everybody was sure that Somebody would do it. Anybody could have done it, but Nobody did it. Somebody got angry about that because it was Everybody's job. Everybody thought that Anybody could do it, but Nobody realized that Everybody wouldn't do it. It ended up that Everybody blamed Somebody when Nobody did what Anybody could have done.
Aug 22, 2013, SF 180 request sent to:
[email protected] , in an attempt to resolve this matter.
Please read the following Title 10 sections of codified law of the United States.
10 USC 3961, 10 USC 3911, 10 USC 3926, and 10 USC 1370. I feel these are the laws that should have governed my retirement. ALL OF MY SERVICE IS: 20 + years of ACTIVE FEDERAL SERVICE, all title 10. 10 yrs, 08 months as a commissioned officer USN- ACTIVE DUTY.
TITLE 10Sec. 3961. General rule
• -STATUTE-
(a) The retired grade of a regular commissioned officer of the
Army who retires other than for physical
disability, and the
retired grade of a reserve commissioned officer of the Army who
retires other than for physical disability, is
determined under
section 1370 of this title.(b) Unless entitled to a higher retired grade under some other
provision of law, a Regular or Reserve of the Army not covered by
subsection (a) who retires other than for physical disability
retires in the regular or reserve grade that he holds on the date
of his retirement.
TITLE 10RETIREMENT FOR LENGTH OF SERVICE Sec. 3911. Twenty years or more: regular or reserve commissioned officers
• -STATUTE-
• (a) The Secretary of the Army may, upon the officer's request, retire a regular or reserve commissioned officer of the Army who has at least 20 years of service computed under section 3926 of this title, at least 10 years of which have been active service as a commissioned officer.
• (b)(1) The Secretary of Defense may authorize the Secretary of the Army, during the period specified in paragraph (2), to reduce the requirement under subsection (a) for at least 10 years of active service as a commissioned officer to a period (determined by the Secretary of the Army) of not less than eight years.
• (2) The period specified in this paragraph is the period beginning on the date of the enactment of the Ike Skelton National Defense Authorization Act for Fiscal Year 2011 and ending on September 30, 2013.
10 USC 3911 provides the legal authority for the length of service retirement of commissioned officers who have completed twenty years or more years of active military service. It states, in pertinent part, that a commissioned officer of the Army may request retirement upon the completion of at least 20 years of service, at least 10 years of which have been active service as a commissioned officer. 3911 depends on section 3926, since that revised section, (10 USC 3926), makes explicit the service covered in order to retire under section 3911. 10 USC 3911 does not state that you must currently be in a commissioned status on the active duty list. I was a regular navy, USN, commissioned officer for 10 Plus years and retired with over 20 years of service as computed under 10 USC 3926 (a) and (a)(2).
So if I satisfy the requirements of 10 USC 3926, which is the key to me retiring as an officer, I should satisfy 10 USC 3911 and 10 USC 1370 for retiring as an officer. I feel I should never have been retired as an enlisted man and my officer retirement should have been automatic.
AR 600-8-24
Overview
6–1. The officer retirement program
a. This chapter applies to nondisability retirement of ADL commissioned and warrant officers on AD to include
AGR commissioned and warrant officers who have 20 years or more of AFS.
b. A commissioned officer, in the rank of major and below may retire in the highest rank served satisfactorily on
AD for 6 or more months unless entitled by law to a higher grade (Title 10, United States Code, Section 1370(a)(1),).
Historical And Revision Notes for section 3911
• Revised Source (U.S. Code) Source (Statutes at section Large)
3911 10:943a. July 31, 1935, ch. 422, Sec. 5 (1st 101 words); restated June 13, 1940, ch. 344, Sec. 3 (1st 45 words), 54 Stat. 380; June 29, 1948, ch. 708, Sec. 202 (1st 105 words), 62 Stat. 1084; July 16, 1953, ch. 203, 67 Stat. 175. 10:971b (1st 100 words).
The words "a regular or reserve commissioned officer of the Army" are substituted for the words "any officer on the active list of the Regular Army * * * or any officer of the reserve components of the Army of the United States". The words "Philippine Scouts" are omitted as obsolete.
The words "has at least 20" are substituted for the words "shall have completed not less than twenty". The words "upon the officer's request" are substituted for the words "upon his own application". The words "service computed under section 3926 of this title" are substituted for the words "active Federal service in the armed forces of the United States", since that revised section makes explicit the service covered.
AMENDMENTS 2000 - Subsec. (b). Pub. L. 106-398 substituted "December 31, 2001" for "September 30, 2001". 1998 - Subsec. (b). Pub. L. 105-261 substituted "during the period beginning on October 1, 1990, and ending on September 30, 2001" for "during the nine-year period beginning on October 1, 1990." 1993 - Subsec. (b). Pub. L. 103-160 substituted "nine-year period" for "five-year period". 1990 - Pub. L. 101-510 designated existing provisions as subsec. (a) and added subsec. (b). TEMPORARY EARLY RETIREMENT AUTHORITY For provisions authorizing the Secretary of the Army, during the period beginning Oct. 23, 1992, and ending Oct. 1, 1995, to apply this section to a regular or reserve commissioned officer with at least 15 but less than 20 years of service by substituting "at least 15 years" for "at least 20 years" in subsec. (a) of this section, see section 4403 of Pub. L. 102-484, set out as a note under section 1293 of this title.
Section Referred To In Other Sections
This section is referred to in sections 631, 632, 637, 638, 638a, 688, 1370, 1406, 3926, 10154, 12646 of this title.
Par 6-2b. "Retired pay is computedaccording to pay formulas in Title 10, United States Code, chapters 71 and 371; provisions contained in the retirement law; and according to title 37 of U.S. Code."
Par 6-13c. "Guidance for retirement at 20 years of service is listed as follows:
(1) An RA or USAR commissioned officer with 20 years AFS (of which 10 years is active commissioned service may on their request and the approval of Secretary of the Army be retired (10 USC 3911). A USAR officer does not have to be serving on AD in commissioned status or in an active USAR status to be eligible under this paragraph."
Title 10 USC § 3926- Computation of years of service: voluntary retirement; regular and reserve commissioned officers
• (a) For the purpose of determining whether an officer of the Army may be retired under section 3911, 3918, or 3924 of this title, his years of service are computed by adding—
• (1) all active service performed as a member of the Army or the Air Force;
• (2) all service in the Navy or Marine Corps that may be included in determining the eligibility of an officer of the Navy or Marine Corps for retirement;
• (3) all service computed under section 3683[1]of this title; and
• (4) if an officer of the Regular Army, all active service performed as an officer of the Philippine Constabulary.
As per 10 USC 3926 (a)(2) My 10 years 08 months as a regular commissioned naval officer, USN, should count toward officer retirement and essentially satisfy the required 10 years requirement of commissioned service: 10 USC 3911, 10 USC 3926, and 10 USC 1370. All my officer time was completed in the Navy as per 10 USC § 3926 (a) (2).
•
10 USC 1370. Commissioned officers: general rule; exceptions
• (a) RULE FOR RETIREMENT IN HIGHEST GRADE
• HELD SATISFACTORILY.—(1) 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 lawother 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.
10 USC 1370 provides the legal authority for the assignment of retired grades to commissioned officers. It states, in pertinent part, that commissioned officers of the Army, in the pay grades 0-1 through 0-3, may be retired in the highest grade held and in which they satisfactorily served on active duty for not less than six months.
Also, DOD Pay manual: VOLUME 7B, CHAPTER 1“INITIAL ENTITLEMENTS – RETIREMENTS”
010502. Special Provisions
B. Regular and Reserve commissioned officers of the Army and Air Force are entitled to the grade equal to the highest temporary grade in which they served on active duty satisfactorily for not less than 6 months. See exception in subparagraph 010501.B.
C. Where an existing statute authorizes computation of pay on the basis of a grade in which the member served satisfactorily that is higher than the pay of the grade otherwise entitled; computation is based on the higher grade:
1. Without regard to whether that grade was temporary or permanent.
2. Even though the Military Service in which the member held that higher grade is not the Military Service in which retired.
10 USC § 101 - Definitions
• (d) Duty Status.— The following definitions relating to duty status apply in this title:
• (1) The term “active duty” means full-time duty in the active military service of the United States. Such term includes full-time training duty, annual training duty, and attendance, while in the active military service, at a school designated as a service school by law or by the Secretary of the military department concerned. Such term does not include full-time National Guard duty.
• (2) The term “active duty for a period of more than 30 days” means active duty under a call or order that does not specify a period of 30 days or less.
• (3) The term “active service” means service on active duty or full-time National Guard duty.
• (4) The term “active status” means the status of a member of a reserve component who is not in the inactive Army National Guard or inactive Air National Guard, on an inactive status list, or in the Retired Reserve.
• (5) The term “full-time National Guard duty” means training or other duty, other than inactive duty, performed by a member of the Army National Guard of the United States or the Air National Guard of the United States in the member’s status as a member of the National Guard of a State or territory, the Commonwealth of Puerto Rico, or the District of Columbia under section 316, 502, 503, 504, or 505of title 32for which the member is entitled to pay from the United States or for which the member has waived pay from the United States.
• (6) (A) The term “active Guard and Reserve duty” means active duty performed by a member of a reserve component of the Army, Navy, Air Force, or Marine Corps, or full-time National Guard duty performed by a member of the National Guard pursuant to an order to full-time National Guard duty, for a period of 180 consecutive days or more for the purpose of organizing, administering, recruiting, instructing, or training the reserve components.
• (B) Such term does not include the following: (i) Duty performed as a member of the Reserve Forces Policy Board provided for under section 10301 of this title.
• (ii) Duty performed as a property and fiscal officer under section 708 of title 32.
• (iii) Duty performed for the purpose of interdiction and counter-drug activities for which funds have been provided under section 112 of title 32.
• (iv) Duty performed as a general or flag officer.
• (v) Service as a State director of the Selective Service System under section 10(b)(2) of the Military Selective Service Act (50 App. U.S.C. 460(b)(2)).
• (7) The term “inactive-duty training” means— (A) duty prescribed for Reserves by the Secretary concerned under section 206 of title 37 or any other provision of law; and
• (B) special additional duties authorized for Reserves by an authority designated by the Secretary concerned and performed by them on a voluntary basis in connection with the prescribed training or maintenance activities of the units to which they are assigned. Such term includes those duties when performed by Reserves in their status as members of the National Guard.
10 USC § 3964 - Higher grade after 30 years of service: warrant officers and enlisted members
• (a) Each retired member of the Army covered by subsection (b) 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 (or, in the case of a member of the National Guard, in which he served on full-time duty satisfactorily), as determined by the Secretary of the Army.
• (b) This section applies to—
– (1) warrant officers of the Army;
– (2) enlisted members of the Regular Army; and
– (3) reserve enlisted members of the Army who, at the time of retirement, are serving on active duty (or, in the case of members of the National Guard, on full-time National Guard duty).
In my case, I feel 10 USC 3964 should not even apply. Specifically 10 USC 3964 b (3). At time of my retirement I was National Guard on Active Duty Title 10 NOT full-time National Guard Duty, which by definition is Title 32. 10 USC § 3964 should not apply to my situation since I was MN ARNG on Active Duty not onfull-Time National Guard Duty.
This is what AGDRB AR 15-80 states:
Chapter 3
Enlisted Personnel Grade Determinations
3–1. General
For enlisted cases, the AGDRB will make final determinations on behalf of the SA. It will determine the highest grade
in which a soldier has served satisfactorily for purposes of service/physical disability retirement, computation of retired
pay (10 USC 1406 or 1407), or separation for physical disability. While enlisted soldiers may be reduced in grade by
courts-martial, nonjudicial punishment proceedings (UCMJ, Art. 15), administrative separation proceedings, or inefficiency
boards, enlisted grade determinations cannot result in reduction of an enlisted soldier’s or retiree’s current grade.
Enlisted grade determinations will result in either a decision to retain the individual’s current grade or to advance to a
higher grade in which the individual satisfactorily served.
3–2. Thirty-year cases
a. Section 3964, title 10, United States Code (10 USC 3964) entitles certain retired members of the Army who are
retired with fewer than 30 years of active service, when such member’s active service plus service on the retired list
totals 30 years, to be advanced on the retired list to the highest grade served on active duty satisfactorily. The AGDRB
reviews each case individually to determine the highest grade served on active duty satisfactorily. This is not an
automatic advancement on the retired list. Section 3964 does not apply in retirement fornonregular service (reserve
retirement) cases when the retiree was not on active duty (or, in the case of members of the National Guard, when the
retiree was not on full-time National Guard duty) at the time of retirement. Section 3964 applies towarrant officers of
the Army; enlisted members of the Regular Army; and reserve enlisted members of the Army who, at the time of
retirement, were serving on active duty (or, in the case of members of the National Guard, were on full-time National
Guard duty). These individuals are eligible for advancement on the retired list when their active service plus service on
the retired list totals 30 years. Individuals to be placed on the retired list with at least 30 years of active service will be
considered for immediate advancement on the retired list. “Highest grade served on active duty” is the grade to which a
soldier was actually promoted and paid pursuant to a lawful promotion. If the highest or intermediate grade was an
officer grade, the statutory TIG requirements for that grade must also be met to be deemed satisfactory (see para 2–4c).
“Highest grade served on active duty” does not include merely being in a promotable status or serving in, “acting,” or
holding a position or job title authorized at a higher grade, such as acting first sergeant or acting sergeant major.
b. Thirty-year cases are the only type of grade determinations that can be initiated by the individual concerned.Grade determinations for individuals retired for nonregular service under 10 USC 12731 (reserve component retirement
at age 60) are conducted automatically by AR–PERSCOM and other separation authorities when individuals are placed
on the retired list. Some 30-year cases, however, must be initiated by a written request from the retiree concerned.
When a reduction from the highest grade served was caused by misconduct, inefficiency, or for cause, the retiree must
initiate the grade determination process at the 30-year mark or later. In such cases, the retiree is presumed not to have
served satisfactorily in the higher grade; therefore, the retiree must request to initiate a grade determination review if
the retiree believes advancement is appropriate. In all other 30-year cases, the retirement authority will initiate the
grade determination process at the time of retirement. Retirement authorities will initiate these grade determinations
beginning with retirements occurring no later than 6 months after the effective date of this regulation. For retirements
occurring before that date, individuals must initiate the grade determination process. Regardless of when the 30-year
grade determination is accomplished, any resulting advancement on the retired list will not be effective until the 30-
year mark. Figure 3–1 provides a sample application to initiate a 30-year grade determination. An individual whose
grade was not determined at the time of retirement will mail an application to Army Review Boards Agency Support
Division; ATTN: SFMR–RBR–SL; St. Louis, MO 63132–5200. That division will attach the applicant’s military
records and forward the application to the AGDRB for consideration. In the case of an individual whose grade is being
determined at the time of retirement, retirement authorities will send the application to CG, PERSCOM, ATTN:
TAPC–PDT–R, 200 Stovall St., Alexandria, VA 22332–0444.
I feel that the Army representatives incorrectly applied the sections of Title 10 law to my retirement, also they missed my last 08 months at the Naval Academy and I am shorted eight months of service on the enlisted side of retirement.
I am able to meet you anytime to explain my position or go over the laws.
V/R,
Dave