Written by Spring 2022 M-VETS Student Advisor Carl Chandler.

Most soldiers, sailors, airmen, marines, and guardians are aware that in order to be eligible for retirement at their current rank, they must serve for a set amount of time in that rank before applying for retirement.  However, recent changes wrought in military personnel law have changed the time in grade requirements for officers, and servicemembers should be aware of the ramifications of not meeting these requirements—even if they aren’t aware of them when they apply for retirement.

This change applies specifically to officers applying for retirement.

The William M. (Mac) Thornberry National Defense Authorization Act for the Fiscal Year 2021 (“NDAA”) became public law on 1 January 2021.[1]  This law made several changes to military personnel statutes, specifically 10 U.S.C.A. § 1370(b)(1), changing the time-in-grade (“TIG”) requirement for any officer applying for voluntary retirement in a grade above Captain from six months to three years:[2]

(b) Retirement of officers retiring voluntarily.—

(1) Service-in-grade requirement.–In order to be eligible for voluntary retirement under any provision of this title in a grade above the grade of captain in the Army, Air Force, or Marine Corps, lieutenant in the Navy, or the equivalent grade in the Space Force, a commissioned officer of the Army, Navy, Air Force, Marine Corps, or Space Force must have served on active duty in that grade for a period of not less than three years, except that–

(A) subject to subsection (c), the Secretary of Defense may reduce such period to a period of not less than two years for any officer; and

(B) in the case of an officer to be retired in a grade at or below the grade of major general in the Army, Air Force, or Marine Corps, rear admiral in the Navy, or an equivalent grade in the Space Force, the Secretary of Defense may authorize the Secretary of the military department concerned to reduce such period to a period of not less than two years.

10 U.S.C.A. § 1370(b) [emphasis added]

This means that if you are an officer applying to retire above the rank of Captain, you need to have at least three years of service from the date you pinned on your rank to be eligible to retire at that rank.

Imagine thinking you had successfully retired at a given rank only to receive a letter from your service’s personnel center informing you that you are actually retired at a lower rank.  It does not matter if you were made aware of the change by your local personnel section or not—the law applies to you.

What avenues of recourse are available to an officer who was impacted by this change and retired thinking they met the TIG requirements but actually did not?  Truthfully—not many.  Jurisdiction to review and modify military records, including retirement rank, is given to the Boards of Correction for Military Records (“BCMRs”): “The Secretary of a military department may correct any military record of the Secretary’s department when the Secretary considers it necessary to correct an error or remove an injustice.”.[3]  This would involve submitting a DD Form 149 to the retired officer’s service BCMR.  However, the statutory change to the TIG requirement also outlines the waiver requirements to waive the TIG requirement, and they are very difficult to meet.

10 U.S.C.A. § 1370(b)(3) provides the statutory grounds and authority for waiver of the TIG requirement, stating, “Subject to subsection (c), the President may waive the application of the service-in-grade requirement in paragraph (1) to officers covered by that paragraph in individual cases involving extreme hardship or exceptional or unusual circumstance.  The authority of the President under this paragraph may not be delegated.”[4]

This means that the waiver authority to waive the TIG requirement is the President of the United States (“POTUS”), and POTUS may only grant a waiver in the case of extreme hardship or unusual circumstance.  The problem arises in trying to prove extreme hardship or unusual circumstance.  One might think that the change could affect retirement pay, and that the reduction in pay would constitute an extreme hardship for the retired servicemember, however, this is not the case.  Retirement pay for most officers currently of retirement age is calculated using the High-36 rule, which applies to military members with an initial date of entry on or after September 8, 1980, but before January 1, 2018.[5]  This means that retirement pay is calculated using an average of a servicemember’s highest 36 months of base pay, meaning that the actual retirement rank on your DD 214 is largely irrelevant in calculating retirement pay.  For example, if you served as a Lieutenant Colonel for one year before applying for retirement, your highest 36 months of pay would be an average of your two years of Major pay and your one year of Lieutenant Colonel pay, even though you would be retired as a Major because you had not met the TIG requirement of three years to be retired as a Lieutenant Colonel.  Thus, your retirement as a Major, even if you thought you would be retired as a Lieutenant Colonel, is not affecting your retirement pay, and a reduction of your retirement rank is likely not an “extreme hardship” for financial reasons for you.

Unusual circumstance is also difficult to prove.  How can you prove that the statutory change to TIG requirements affects you differently than any other officer?  The author of this post cannot imagine a scenario where any one officer would be impacted by this change in a manner significantly dissimilar to other officers.

For a servicemember caught of guard by these changes, what seems like a demotion in retirement can be stressful and upsetting, no matter how a service attempts to console you by telling you that your service was appreciated.  The rules, however, are the rules, and servicemembers should make sure they educate themselves on their retirement eligibility before applying for retirement.

As always, if you are an officer considering retirement—confirm with your base personnel section and service personnel center that you meet the requirements for retirement at your current rank.  If you don’t meet the requirements and submit a retirement application, you may be retired at a lower rank than you anticipated.  As discussed earlier, a waiver to rectify this situation is extremely difficult to obtain—know the rules before you push the button.

[1] See William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021, Pub. L. No. 116-283, 2021 (codified at 10 U.S.C.A. § 1370 (2021)).

[2] 10 U.S.C.A. § 1370(b)

[3] 10 U.S.C. § 1552.

[4] 10 U.S.C.A. § 1370(b)(3)

[5] Military Compensation, Department of Defense, https://militarypay.defense.gov/Pay/Retirement/.