MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 25 September 2003
         DOCKET NUMBER: AR2003087969

         I certify that hereinafter is recorded the record of consideration 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. John N. Slone		Chairperson
Ms. Regan K. Smith		Member
Mr. Linda D. Simmons		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

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

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APPLICANT REQUESTS: In effect, that he be reinstated to the pay grade of
E-8.

APPLICANT STATES: In effect, he held the rank and pay grade of first sergeant/E-8 in the Army National Guard (ARNG) from 13 July 1989 through the date of his discharge from that component on 15 November 1993, and no administrative reduction orders were ever published when he was transferred to a Troop Program Unit (TPU) in the United States Army Reserve (USAR). He further claims no administrative reduction orders were published in connection with his mobilization in support of Operation Enduring Freedom. He states that he never reenlisted in the USAR as an E-7 and this mobilization was a transfer action based on a written request for administrative reduction, but reduction orders were never published.

EVIDENCE OF RECORD: The applicant's military records show:

On 15 November 1993, he was honorably discharged from the ARNG after completing 14 years, 4 months, and 17 days of net service on that period of service and a total of 19 years, 10 months, and 6 days of service for pay purposes. The separation document (NGB Form 22) issued to him at this time confirms that he held the rank of 1SG/E-8, with a date of rank of 13 July 1989, and the military occupational specialty (MOS) 11B (Infantryman). It also confirmed that he was being transferred to the USAR Control Group, St. Louis, Missouri.

On 20 May 1998, the applicant was transferred from the USAR Control Group to a TPU. The orders directing this action show that he was transferred to the TPU in the rank and pay grade of sergeant first class/E-7 (SFC/E-7) and the MOS 54B (Chemical Operations Specialist). Noncommissioned Officer Evaluation Reports (NCOERs) that he received while assigned to the TPU all show that he held the rank and pay grade of SFC/E-7 and was assigned to a platoon sergeant position in MOS 54B40.

On 26 March 2002, the applicant was ordered to active duty in a Retired status for a period not to exceed 365 days. The orders directing this action indicate that he was ordered to active duty in the rank and pay grade of SFC/E-7 in MOS 54B in support of Operation Enduring Freedom.

Army Regulation 140-158 prescribes the policy and procedures governing the classification, advancement, promotion, reduction, and grade restoration of applicable USAR soldiers.

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Paragraph 6-2g of the same regulation provides guidance on special promotions. It states, in pertinent part, that soldiers reduced under paragraph 7-12b may be promoted to their former grade upon their transfer to the Retired Reserve provided they are in a promotable status. Paragraph 7-12b provides guidance on voluntary reductions. It states that a soldier may volunteer for reduction to one or more lower pay grades. The reduction requested by the soldier will be accomplished by the promotion authority without prejudice. Such reductions will normally be limited to soldiers desiring reduction for assignment in a lower grade to an existing vacancy in a TPU.

Title 10 of the United States Code, section 12307 provides the legal authority for the involuntary call to active duty of members in the Retired Reserve. It also contains promotion guidance in regard to members of the Retired Reserve. It states, in pertinent part, that a member in a retired status is not eligible for promotion (or consideration for promotion) as a Reserve.

Title 10 of the United States Code, section 1406b(2) (10 USC 1406b(2) provide the legal guidance on retired pay base for members who became members before September 8, 1980. It states, in pertinent part, that in the case of
non-regular retirement of a person entitled to retired pay, the retired pay base is the monthly basic pay determined at the rates applicable on the date when retired pay is granted, of the highest grade held satisfactorily by the person at any time in the armed forces.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and, it is concluded:

1. The Board notes the applicant’s contention that he was administratively reduced in order to accept a TPU position and that he should be reinstated to his old rank at this time. However, it finds an insufficient evidentiary basis on which to base the requested relief.

2. The record is void of any information or documentation in regard to the applicant’s original administrative reduction or to any subsequent promotion action. However, it does contain orders that confirm he was accepted into and served in a TPU as an SFC/E-7 in MOS 54B, not in MOS 11B, which he had previously held as a 1SG in the ARNG. There are also orders on file that confirm that he was ordered to active duty from the Retired Reserve to serve as a SFC/E-7 in MOS 54B, not in MOS 11B as a 1SG/E-8. Therefore, the Board presumes government regularity in the voluntary administrative reduction process.

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3. There are special promotion provisions that allow for soldiers who were voluntarily reduced administratively without prejudice to be promoted to their former grade upon their transfer to the Retired Reserve if they are in a promotable status. However, the record is void of any orders or documents pertaining to the applicant’s original transfer to the Retired Reserve. As a result, the Board is unable to determine if the applicant was considered or even eligible for promotion under this provision at the time he was originally transferred to the Retired Reserve. Thus, it is compelled to presume government regularity in the applicant’s grade assignment in the Retired Reserve.

4. Further, there are orders on file that confirm the applicant was ordered to actie duty from the Retired Reserve to serve in the rank and pay grade of SFC/E-7 in MOS 54B, and his promotion is prohibited while he is in this status. Therefore, the Board finds no basis to reinstate the applicant’s former grade in conjunction with his mobilization as he requested.

5. The applicant is advised that he is entitled to receive retired pay at age 60 in the highest rank and pay grade he held and in which he satisfactorily served at anytime in the Armed Forces. Therefore, based on his satisfactory service as a 1SG/E-8 in the ARNG, he is entitled to receive retired pay at age 60 in that rank and pay grade.

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

_JS__ __LDS___ __RKS__ DENY APPLICATION




                                                      Carl W. S. Chun
                                    Director, Army Board for Correction
                           of Military Records

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INDEX

CASE ID	AR2003087969
SUFFIX
RECON
DATE BOARDED	2003/08/DD
TYPE OF DISCHARGE	N/A
DATE OF DISCHARGE	N/A
DISCHARGE AUTHORITY	N/A
DISCHARGE REASON	N/A
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 319	131.0900
2.
3.
4.
5.
6.