Today’s post is an “ask the readers” question about military retirement after service in both enlisted and officer grades.
(Nearly 80% of this blog’s readers find a post through a search engine. This post uses keywords about officer and enlisted retirements and the accompanying legal issues that can be difficult to research. The same keywords will also help you look up the references behind your service’s retirement regulations so that you can understand where the instructions came from.)
I’m familiar with the Navy’s active-duty retirement system. I know most of the retirement rules for officers who have previous enlisted service. I’m also pretty good at navigating the DoD’s Financial Management Regulations for calculating those retirements, and I can look up Title 10 of the U.S. Code to help figure out what rules apply to a retirement.
Yet readers have asked about retirements where it’s difficult to tell whether someone has been retired according to the rules, or if there’s been a mistake. If you’re familiar with the types of situations that I’m describing below, then I’d appreciate more insight into what federal laws apply to their retirements.
Here’s the first reader question:
“I enlisted in active-duty USMC in 1977, completing three years of honorable service in 1980. In 1985, I entered active-duty USAF as an officer and served 7.5 years – again I was honorably discharged in 1992.
In 2001, I joined the USAF Reserve, again as an officer. Later I was passed over twice for promotion to 0-4 and was discharged in 2006. (My service in the inactive AF Reserve between 1992 to 2001– with no performance reports– hindered my chances for promotion.) I was honorably discharged from the USAF Reserve in 2006, and I joined the Army Reserve as an E-5. I was promoted to E-6, I’ve obtained my 20-year Notice of Eligibility, and I am still serving as an IMA Reservist.
I have over 12 good years as an officer– nearly nine of them as an O-3. I fall under the Final Pay retirement plan. Do I qualify to retire at my highest grade held, or do I retire as an E-6?”
I’m impressed to see a servicemember who’s still eligible for the Final Pay retirement system!
My first piece of advice is: consult a military lawyer from a base legal service office. They’re familiar with both federal law and DoD retirement rules and can figure out the details. By enlisting before 8 September 1980, this retirement comes under Final Pay legacy rules that today’s personnel staffs may not see very often.
As I understand the DoD Financial Management Regulation, this reader is eligible to retire as an O-3. Sections 010501(E) and 030105 include the phrase “of the highest grade held satisfactorily at any time in the Armed Forces.” They have over 10 years of commissioned service, and they served satisfactorily in their senior grade (O-3) for at least six months. However, a key question could be whether their broken service or their failure to promote can affect the rules which apply to retiring in officer or enlisted status.
The bibliography of the FMR cites federal law in Title 10 U.S. Code sections 1406(b)(2) and 1370(d). 1406(b)(2) explains Reserve retirement under the Final Pay system and also specifies the “highest grade held satisfactorily by the person at any time”. It then refers to 1370(d), which specifies the rules for retirement in the highest grade held satisfactorily. It requires serving in officer ranks (up to paygrade O-4) for at least six months to be able to retire at that rank.
The services each have their own parts of Title 10 law. The Army sections 3911 and 3926 lay out the requirements of
a Reserve an active-duty retirement, at least 10 years of which have been active service as a commissioned officer. The Secretary of the Army also has the authority to waive the 10 years to eight years, and can do this through the end of FY18.
However Reserve and National Guard retirements are handled under section 12732, which does not have any requirement for years of commissioned service.
[Note: I’ve updated the last two paragraphs in January 2020 due to clarifying that Reserve/Guard officers do not have a 10-year requirement. There’s only a “satisfactory service” requirement of six months.]
If you’ve been in uniform for a few years (particularly as an officer) then you’ve probably heard about these requirements and numbers before. Now you know where they come from, and you can look up the details for yourself at the Cornell Law School’s Legal Information Institute.
However, another reader was retired in an enlisted rank, despite considerable officer service:
“I was on active duty for over 16 years Navy, and I was commissioned for 10 years and 8 months of that service. I was separated by a reduction in force after the first Gulf War. I later joined the MN Army National Guard at an enlisted rank, deployed to Iraq for two years, and retired with over 20 years of active federal service.
The Army retired me under Title 10 U.S. Code sections 3914 and 3964. I have been retired for two years now and still cannot get anyone to explain to me why Title 10 U.S. Code sections 1370, 3926, and 3911 do not apply to my situation.”
The problem is that Title 10 U.S. Code sections 3914 and 3963 apply to Army Reserve enlisted with at least 20 years of service who were retired “in the highest enlisted grade in which the member served on active duty or National Guard duty satisfactorily”. Those sections don’t recognize officer service, and maybe those were the wrong sections to use for this reader’s retirement request.
This reader is also consulting a lawyer to figure out whether Title 10 U.S. Code sections 3911 and 3926 should have been applied. Perhaps the Army personnel branch wasn’t familiar with (or even aware of) this servicemember’s Navy active-duty service. Of course I may not have all the details, so let me know if there’s a question that would make a difference and I’ll pass it on to the reader.
If you’ve had service in more than one branch of the military, particularly as a commissioned officer, then make sure your current branch of service has a copy of the records from the other services. Electronic databases may not be compatible between the services, so that previous service may have to be entered online as well as placed on file with your local personnel office.
When you separate or retire from the service, the procedures are based on the DoD FMR and federal law. As you go through the process you should ask what instructions, procedures, and regulations apply to your situation– and then look them up to be sure they really do apply to your situation. If something else seems applicable then take it up with the personnel office and your chain of command. If they can’t help then consult a military lawyer to make sure that you understand the issues.
It’s hard to figure out what rules and laws are being applied to your transition, but it’s even harder to correct these errors after you leave the service. If you have a question about your own situation then ask it in the comments below (or use the “Contact me” page) and we’ll try to figure out the answer!