| Mr. Carl W. S. Chun | Director | |
| Mr. Joseph A. Adriance | Analyst |
| Ms. Joann H. Langston | Chairperson | ||
| Mr. Richard T. Dunbar | Member | ||
| Ms. Yolanda Maldonado | Member |
APPLICANT REQUESTS: In effect, that his rank and pay grade at the time of his release from active duty (REFRAD) for retirement, be changed to sergeant first class/E-7 (SFC/E-7), the highest grade he satisfactorily held and served in while on active duty.
APPLICANT STATES: In effect, that if a grandfather clause had been invoked at the time he reentered the Regular Army in 1987, his retired pay would have been based on the highest grade he satisfactorily held while serving on active duty, SFC/E-7; and not on the rank and pay grade he held at the time of his retirement, corporal/E-4 (CPL/E-4).
EVIDENCE OF RECORD: The applicant's military records show:
On 25 June 1984, the applicant was separated from active duty under the provisions of chapter 6, Army Regulation 635-200, by reason of hardship/sole parent. At that time, he held the rank and pay grade of SFC/E-7, with a date of rank of 1 February 1982; and he had completed a total of 15 years, 11 months, and 25 days of active military service.
On 23 July 1987, the applicant reenlisted in the Regular Army for 4 years and reentered active duty in the pay grade of E-4. He continuously served on active duty until 30 June 1991, at which time he was REFRAD for the purpose of retirement.
Orders Number 83-192, dated 2 May 1991, issued by the 199th Personnel Service Company, APO San Francisco 96301, directed the applicant’s REFRAD on 30 June 1991, and his placement on the Retired List on 1 July 1991, in the retired grade of rank of CPL/E-4.
The separation document (DD Form 214) issued to and authenticated by the applicant on the date of his separation, 30 June 1991, also confirms that he held the rank and pay grade of CPL/E-4 on that date. This document further verifies that he was REFRAD for the purpose of retirement under the provisions of chapter 12, Army Regulation 635-200, by reason of length of service retirement.
On 30 January 2001, the Army Grade Determination Review Board (AGDRB) considered the applicant’s case and determined that the highest grade in which he satisfactorily served for the purpose of computation of retired pay was
SFC/E-7, and that the date he became eligible for advancement on the Retired List would be determined by the Army Reserve Personnel Command (ARPERSCOM).
On 26 February 2002, ARPERSCOM officials notified the applicant that he had been advanced to the rank and pay grade of SFC/E-7 on the Retired List, effective 28 June 2001.
Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 12 contains the policy for voluntary retirement for length of service. It states, in pertinent part, that retirement will be in the Regular Army or Reserve grade the soldier holds on the date of retirement, as prescribed in Title 10 of the United States Code, section 3961 (10 USC 3961), which provides the legal authority for retirement grades.
10 USC 3961 provides the legal authority and general rule pertaining to retirement grades. It states, in pertinent part, that unless entitled to a higher retired grade under some other provision of law, a Regular or Reserve member of the Army who retires other than for physical disability retires in the Regular or Reserve grade that he/she holds on the date of his retirement. Other than allowing for the advancement of enlisted members on the Retired List under the provisions of 10 USC 3964, the law provides no grandfather provisions that would authorize retirement in the highest grade held.
10 USC 3964 provides the legal authority for advancement on the Retired List. It states, in pertinent part, that retired enlisted soldiers are entitled to, when their active service plus service on the retired list totals 30 years, to be advanced on the Retired List to the highest grade they held and in which they satisfactorily served while on active duty as determined by the Secretary of the Army.
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 his rank and pay grade at the time of his retirement should have been SFC/E-7. However, it finds insufficient evidence to support this claim.
2. The evidence of record confirms that the applicant held the rank of SFC/E-7 at the time he was discharged from the Army in 1984. However, he voluntarily entered into and signed a contract agreeing to reenlist in the Army and reenter active duty in the pay grade of E-4 on 23 July 1987, and he still held that pay grade on the date he was REFRAD for retirement.
3. By law, members retire in the active duty grade they hold on the date of their REFRAD for retirement. Other than advancement on the Retired List provisions contained in 10 USC 3964, there are no grandfather provisions of this law that allow for placement on the Retired List in the highest grade held. Thus, the Board finds no legal or regulatory provisions for granting the requested relief.
4. The law does allow for advancement to the highest grade satisfactorily held when an enlisted members active duty service and time on the Retired List equals 30 years. The evidence of record confirms that the AGDRB approved the applicant’s advancement to the rank and pay grade of SFC/E-7 on the Retired List, which was accomplished on 28 June 2001. Thus, the Board concludes that the applicant has received the advancement entitlement to which he was due and no further pay grade adjustment is required at this time.
5. 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.
6. 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
__rtd ___ ___ym___ ___jhl___ DENY APPLICATION
| CASE ID | AR2002082165 |
| SUFFIX | |
| RECON | |
| DATE BOARDED | 2003/04/15 |
| TYPE OF DISCHARGE | HD |
| DATE OF DISCHARGE | 1991/06/30 |
| DISCHARGE AUTHORITY | AR 635-200 |
| DISCHARGE REASON | Retirement |
| BOARD DECISION | DENY |
| REVIEW AUTHORITY | |
| ISSUES 1. 21 | 102.0700 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
ARMY | BCMR | CY2003 | 2003091703C070212
On 8 January 1990, the applicant submitted an application for voluntary retirement (DA Form 2339) requesting a retirement date of 31 October 1990, in the rank and pay grade of SFC/E-7. It states, in pertinent part, that retired soldiers are entitled to be advanced on the Retired List to the highest grade they held and in which they satisfactorily served on active duty when their active service plus service on the retired list totals 30 years. By law, enlisted soldiers are retired in the...
ARMY | BCMR | CY2002 | 2002074792C070403
The applicant requests correction of military records as stated in the application to the Board and as restated herein. 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: The evidence of record confirms that the highest rank and pay grade that the applicant was promoted to, held, in which he satisfactorily served while on active duty was SFC/E-7.
ARMY | BCMR | CY2001 | 2001059179C070421
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. There are no provisions of law or regulation that provide for the advancement on the Retired List of an enlisted member who served in a commissioned officer grade in the ARNG not on active duty. The record...
ARMY | BCMR | CY2002 | 2002077590C070215
EVIDENCE OF RECORD : The applicant's military records show: It denied the applicant’s advancement to 1SG/E-8 on the Retired List because he had never served in that rank and pay grade while on active duty, which is required under the provisions of the advancement 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:
ARMY | BCMR | CY2001 | 2001057694C070420
The applicant’s Department of the Army (DA) Form 2-1 (Personnel Qualification Record) confirms, in block 18 (Appointments and Reductions), that he was promoted to the rank and pay grade of SFC/E-7 on 21 February 1975, which is the highest rank he held while on active duty. On 24 August 2001, the Army Grade Determination Review Board (AGDRB) denied the applicant’s request to be advanced to the rank and pay grade of MSG/E-8 on the Retired List. The evidence of record confirms that the...
ARMY | BCMR | CY2002 | 2002073643C070403
On 10 February 1982, after serving as a SSG/E-6 for almost 5 years, he was promoted to sergeant first class/E-7 (SFC/E-7), which is the highest rank and pay grade he held while serving on active duty. On 23 May 2002, the Army Grade Determination Review Board (AGDRB) convened to consider the applicant’s advancement on the Retired List, and it denied advancement on the Retired List based on the applicant’s general court-martial conviction and the resultant sentence which included his...
ARMY | BCMR | CY2008 | 20080005861
It states, in pertinent part, that retired Soldiers are entitled to be advanced on the Retired List to the highest grade they held and in which they satisfactorily served on active duty when their active service plus service on the Retired List totals 30 years. The evidence further shows that the DASA (RB), after receiving the votes and recommendations of the members of the AGDRB, determined that the applicant's service in the grade of MSG was not satisfactory due to his own misconduct and...
ARMY | BCMR | CY2002 | 2002082908C070215
The applicant submitted an application to the Army Grade Determination Board (AGRDB) requesting advancement on the Retired list to the pay grade of E-7. This law authorizes Reserve enlisted members of the Army to be placed on the Retired List in the highest enlisted grade in which they served on active duty satisfactorily. The laws and regulations in effect at that time provided for his placement on the Retired List in the rank and pay grade he held on the date of his REFRAD, and for his...
ARMY | BCMR | CY2002 | 2002083189C070215
APPLICANT REQUESTS: In effect, that he be advanced on the Retired List to the highest grade in which he satisfactorily served while on active duty. On 16 March 1992, the applicant submitted an Application for Voluntary Retirement (DA Form 2339) requesting that he be REFRAD for the purpose of retirement on 31 January 1993, in the rank and pay grade of SFC/E-7. 3 The evidence of record confirms that the highest rank and pay grade the applicant attained while serving on active duty was SFC/E-7.
ARMY | BCMR | CY2002 | 2002076732C070215
The applicant requests correction of military records as stated in the application to the Board and as restated herein. On 1 December 1969, the applicant submitted an Application for Voluntary Retirement (DA Form 2339) requesting that he be REFRAD for the purpose of retirement on 30 November 1970, in the rank and pay grade of SSG/E-6. The evidence of record confirms that the highest rank and pay grade the applicant attained while serving on active duty was SSG/E-6.