RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           6 December 2005
      DOCKET NUMBER:  AR20050001997


      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. Bernard P. Ingold             |     |Chairperson          |
|     |Mr. Donald W. Steenfott           |     |Member               |
|     |Mr. Edward E. Montgomery          |     |Member               |

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, reconsideration of his request to
correct his retired grade from sergeant first class/E-7 (SFC/E-7) to master
sergeant/E-8 (MSG/E-8).

2.  The applicant states, in effect, he was promoted to MSG/E-8 on 1 July
2001, and was administratively reduced in conjunction with his release from
active duty (REFRAD) for retirement on 30 April 2002 because he had not
completed the two-year promotion service obligation.  He further states he
received no formal counseling regarding the reduction and was only informed
on his final day of
out-processing for retirement that he would be reduced in grade.

3.  The applicant provides a request for advancement on the Retired List in
support of his application.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were
summarized in the previous consideration of the applicant's case by the
Army Board for Correction of Military Records (ABCMR) in Docket Number
AR2004102335 on
4 November 2004.

2.  On 1 July 2001, the applicant was promoted to MSG/E-8 while serving on
active duty in an Active Guard Reserve (AGR) status performing Full-Time
National Guard Duty (FTNGD) in Lima, Ohio.

3.  On 5 March 2002, the State of Ohio Adjutant’s General Department,
published Orders Number 043-134.  These orders reassigned the applicant to
the United States Army Transition Point, Fort Knox, Kentucky on 28 March
2002, for out-processing for retirement, which was scheduled for 30 April
2002.  The authority for this reassignment was Army Regulation 635-200.
Paragraph 2 of these orders directed the applicant’s release from active
duty on 30 April 2002, and his placement on the Retired List on 1 May 2002,
in the retired grade of MSG/E-8.  The statutory authority for the
applicant’s retirement cited in these orders was Title 10 of the United
States Code, section 3914 (10 USC 3914).

4.  On 28 March 2002, Headquarters, United States Army Armor Center and
Fort Knox, Fort Knox, Kentucky, published Orders Number 087-0152 amending
State of Ohio Adjutant’s General Department Orders Number 043-134, by
changing his retired grade to SFC/E-7.  The authority lead line contained
on these orders contained the entry not applicable.

5.  10 USC 3914 provides the legal authority for the retirement of enlisted
member with at least 20, but less than 30 years of active military service.

10 USC 3961(b) provides guidance on retired grades for Soldiers who retire
for reasons other than physical disability.  It states, in pertinent part,
that unless entitled to a higher retired grade under some other provision
of law, a Regular or Reserve 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.

6.  Army Regulation 635-200 (Active Duty Enlisted Administrative
Separations) sets policies, standards, and procedures to ensure the
readiness and competency of the force while providing for the orderly
administrative separation of Soldiers for a variety of reasons.  Chapter 12
sets policies and procedures for voluntary retirement of Soldiers because
of length of service and governs the retirement of Soldiers (Active Army,
Army National Guard, and United States Army Reserve) who are retiring in
their enlisted status.

7.  Paragraph 12-8(d) of the enlisted separations regulation provides
guidance on promotion service obligations.  It states, in pertinent part,
that Soldiers who are promoted to the grade of sergeant first class, master
sergeant/first sergeant, or sergeant major/command sergeant major incur a 2-
year service obligation. However, paragraph 12-8(d)(3) states that a
promoted individual may not be administratively reduced to terminate a
promotion service obligation.

8.  National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management)
contains guidance that differs from the statutory retirement grade
provisions and from the guidance contained in Army Regulation 635-200
regarding grade actions authorized based on the non-completion of a service
obligation.  It provides, in pertinent part, for Soldiers not completing
service obligations to be retired in the next lower grade unless granted an
exception to policy by the Chief, National Guard Bureau.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the statutory authority for the
applicant’s retirement was 10 USC 3914, and the governing statute regarding
his retired grade was 10 USC 3961(b).  Notwithstanding the regulatory
guidance contained in NGR 600-200, by law unless entitled to a higher
retired grade under some other provision of law, a Regular or Reserve 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.

2.  The laws governing retirement and retired grades provide no
discretionary authority that allows for the administrative reduction of an
enlisted Soldier who has not completed a promotion service obligation at
the time of his/her retirement, as is codified in the active Army enlisted
separations regulation
(Army Regulation 635-200), which stipulates that a promoted individual may
not be administratively reduced to terminate a promotion service
obligation.

3.  In view of the facts of this case, it appears NGR 600-200 is not in
compliance with the governing retirement statutes.  Therefore, its use as
the authority to administratively reduce the applicant based on his not
completing the promotion service obligation was inappropriate.  As a
result, the applicant’s administrative reduction should be revoked, and he
should be placed on the Retired List in the grade MSG/E-8, effective 1 May
2002.  He should also be provided all back retired pay due as a result.

BOARD VOTE:

___BPI__  __DWS__  __EEM__  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant
amendment of the ABCMR’s decision in Docket Number AR2004102335, dated 4
November 2005.  As a result, the Board recommends that all Department of
the Army records of the individual concerned be corrected by revoking his
administrative reduction from MSG/E-8; by showing he was placed on the
Retired List in the Retired Grade of MSG/E-8 on 1 May 2002; and by
providing him all back retired pay due as a result of this correction.




            ____Bernard P. Ingold______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050001997                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/12/06                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |2002/04/30                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |Retirement                              |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |129.0400                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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