PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 20 May 2003
         DOCKET NUMBER: AR2003083764


         I certify that hereinafter is recorded the true and complete record of the proceedings 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. Melvin H. Meyer		Chairperson
Ms. Deborah Jacobs		Member
Mr. Jose A. Martinez		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests, in effect, that his retired rank and pay grade be changed from sergeant first class/E-7 (SFC/E-7) to first sergeant sergeant/E-8 (1SG/E-8).

3. The applicant states, in effect, that during his tenure on active duty in the Active Guard/Reserve (AGR) program, he was promoted to the pay grade of E-8 on 1 August 1998 and he was administratively reduced to the pay grade of E-7 on 1 July 2000. He claims that given he served on active duty in the pay grade of E-8, he should have been retired in that pay grade. He states that during his out-processing at Fort Stewart, Georgia, transition point personnel tried to correct this matter without success because the orders publishing authority refused to amend his separation orders.

4. The applicant’s military records show that he was released from active duty (REFRAD) for the purpose of retirement on 31 January 2002 after completing a total of 20 years, 1 month, and 1 day of active military service and 25 years,
0 months, and 11 days of military service for basic pay purposes. At the time of his REFRAD, he held the rank and pay grade of SFC/E-7.

5. The applicant’s Military Personnel Records Jacket (MPRJ) contains orders showing that on 1 August 1998, the applicant was promoted to the rank and pay grade of MSG/E-8. On this same date, orders were published that authorized his lateral appointment to 1SG/E-8, and that awarded him the special qualification identifier (SQI) of "M”, which identified him as a qualified 1SG.

6. The applicant’s MPRJ also contains a copy of Orders Number P174-019, dated 22 June 2000, issued by the Florida Army National Guard (FLARNG), which directed the applicant’s administrative reduction from 1SG/E-8 to
SFC/E-7, effective 1 July 2000.

7. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 12 contains the policy and procedures pertaining to retirement. Paragraph 12-3 contains the general provisions of laws governing retirement. It states, in pertinent part, that retirement normally will be in the regular or reserve grade the soldier holds on the date of retirement. However, as an exception, Army National Guard (ARNG) soldiers serving on active duty at the time of retirement, in a grade lower than their highest active duty enlisted grade, who were administratively reduced in grade not as a result of their own misconduct, will retire at the highest enlisted grade in which they served satisfactorily on active duty.

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8. Paragraph 12-8 of the same regulation contains guidance on service obligations. It states, in pertinent part, that soldiers who are promoted to the grades of E-7, E-8, and E-9 incur a 2-year service obligation that must be completed before voluntary retirement. However, it also stipulates that soldiers may not be administratively reduced to terminate a promotion service obligation. Paragraph 12-11 contains guidance on waivers of service obligations. It states, in pertinent part, that exceptions to service obligations may be granted when it is in the best interest of the Army.

9. Title 10 of the United States Code, section 3963, as enacted by Public Law
104-201 on 23 September 1996, provides the legal authority for retirement in the highest grade held satisfactorily by Reserve enlisted members reduced in grade not as a result of the member's misconduct. It states, in pertinent part, that a Reserve enlisted member of the Army shall be retired in the highest enlisted grade in which the member served on active duty satisfactorily (or, in the case of a member of the National Guard, in which the member served on full-time National Guard duty satisfactorily), as determined by the Secretary of the Army. This applies to a Reserve enlisted member who at the time of retirement is serving on active duty (or, in the case of a member of the National Guard, on full-time National Guard duty) in a grade lower than the highest enlisted grade held by the member while on active duty (or full-time National Guard duty); and was previously administratively reduced in grade not as a result of the member's own misconduct, as determined by the Secretary of the Army.

CONCLUSIONS:

1. The Board notes the applicant’s contention that he should have been retired in the highest grade he held while serving on active duty and it finds this claim has merit.

2. By law and regulation, ARNG soldiers serving on active duty at the time of retirement, in a grade lower than their highest active duty enlisted grade, who were administratively reduced in grade not as a result of their own misconduct, will retire at the highest enlisted grade in which they served satisfactorily. The retirement regulation also states that soldiers incur a two year service obligation upon promotion to the pay grades of E-7, E-8, and E-9, which must be completed prior to retirement. This regulation further stipulates that soldiers may not be administratively reduced to terminate a promotion service obligation, and that waivers of service obligations may be granted when it is in the best interest of the Army.

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3. The evidence of record confirms that the applicant satisfactorily served on active duty in the rank and pay grade of 1SG/E-8 from 1 August 1998 through
1 July 2000, just one month short of the two years service obligation. It also shows that he was administratively reduced, not due to his own misconduct, in order to accept a reassignment and change of position in the best interest of the Army.

4. In the opinion of the Board, since regulation stipulates that an administrative reduction may not be used to terminate a promotion service obligation for the purpose of retirement, and given waivers of the obligation are authorized for the good of the Army, a waiver of the one month remaining on the applicant’s two year promotion service obligation is warranted. Thus, the Board finds the applicant’s 23 months of service as a 1SG/E-8 is sufficient to meet the satisfactory service requirement for retirement purposes.

5. In view of the facts of this case, the Board concludes that it would serve the interest of equity to correct the applicant’s record to show he was placed on the Retired List in the rank and pay grade of 1SG/E-8 on 1 February 2002, and to provide him any back retired pay due as a result.

6. In view of the foregoing, the applicant’s records should be corrected as recommended below.

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RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by showing that the individual concerned was authorized to retire in the rank and pay grade of first sergeant/E-8; that he was placed on the Retired List in that rank and pay grade on 1 February 2002; and by providing him all back retired pay due as a result.

BOARD VOTE:

__       DJ__ __MM___ __JM___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  Melvin H. Meyer_
                  CHAIRPERSON

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INDEX

CASE ID	AR2003083764
SUFFIX
RECON
DATE BOARDED	2003/05/20
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	2002/01/31
DISCHARGE AUTHORITY	AR 635-200 C12
DISCHARGE REASON	Retirement
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1. 306	129.0400
2.
3.
4.
5.
6.