RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        22 August 2006
      DOCKET NUMBER:  AR20060000943


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. Jerome L. Pionk               |     |Member               |

      The Board considered the following evidence:

      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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel (before he withdrew from representing the applicant) requested
that the applicant’s records be corrected to show he retired as a Sergeant
First Class (SFC), E-7.

2.  Counsel stated the applicant was retired under Title 10, U. S. Code,
section 3914 after completing over 20 years of active duty.  He had been
promoted to SFC in 1979 and served a few periods of annual training as an
SFC.  He was administratively reduced to Staff Sergeant (SSG), E-6 in 1985
so he could enter active duty in an Active Guard Reserve (AGR) status.
When he retired from active duty, he made numerous attempts to ensure he
would be retired as an SFC.  However, the offices to which he talked failed
to interpret the statute correctly.

3.  Counsel stated the applicant was originally to be retired on 31 January
2004, but it was determined at that time that he had lung cancer.  After
extensive surgery and other treatments to remove the cancer, a Medical
Evaluation Board determined that he was ”fit for duty” and should be
allowed to retire.  The Board needs to be informed that this was an
administrative determination made solely to entitle the applicant to
retirement based upon over 20 years of active service.  In reality, he was
clearly not fit for duty.  The MEB wanted to ensure that the applicant
would receive the greatest possible financial retirement benefits.

4.  Counsel provides the 17 documents listed on the Appendix to the
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Army National Guard on 28 August 1969.
He was promoted to Platoon Sergeant (a rank no longer in use), E-7 on 1
December 1979.  From 1 December 1979 through 27 August 1984, he completed
five periods of active duty (annual training), including one period of 15
days of annual training in Italy under the authority of Title 10, U. S.
Code.

2.  Effective 1 March 1985, the applicant accepted a voluntary reduction to
SSG for the purpose of accepting an AGR position.  He entered active duty
on            1 March 1985.

3.  On 1 July 2005, the applicant retired from active duty under the
authority of Title 10, U. S. Code, section 3914.  He was placed on the
retired list in the rank and grade of SSG, E-6.

4.  In the processing of this case, an advisory opinion was obtained from
the National Guard Affairs Office, U. S Army Human Resources Command – St.
Louis.  That office recommended approval of the applicant’s request.

5.  A copy of the advisory opinion was provided to the applicant for
comment or rebuttal.  He concurred with the advisory opinion.

6.  Army Regulation 635-200 (Active Duty Enlisted Administrative
Separations), paragraph 12-3b(1) states that retirement normally will be in
the regular or reserve grade the Soldier holds on the date of retirement.
As an exception, Army National Guard of the United States and U. S. Army
Reserve 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.

7.  Title 10, U. S. Code, section 3963(a) states a Reserve enlisted member
of the Army described in subsection (b) who is retired under section 3914
of this Title 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.
Subsection 3963(b) states this section applies to a Reserve enlisted member
who (1) 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 (b) was previously
administratively reduced in grade not as a result of the member’s own
misconduct, as determined by the Secretary of the Army.

8.  Title 10, U. S. Code, section 101(d)(1) defines “active duty” as full-
time duty in the active military service of the United States.  Such term
includes full-time training duty, annual training duty, and attendance
while in the active military service, at a school designated as a service
school by law or by the Secretary of the military department concerned.
Such term does not include full-time National Guard duty.

9.  Army Regulation 635-40 governs the evaluation of physical fitness of
Soldiers who may be unfit to perform their military duties because of
physical disability.  In pertinent part, it states a Soldier may not be
retained or separated solely to increase retirement or separation benefits.

DISCUSSION AND CONCLUSIONS:

Despite the appearance (according to counsel’s statement) that he was
inappropriately retained on active duty, it appears the applicant met the
statutory requirement to be retired as an SFC,  E-7.  He was a Reserve
component member who retired under the authority of Title 10, U. S. Code,
Section 3914 who had served satisfactorily on active duty as an E-7 prior
to accepting an administrative reduction to enter active duty in an AGR
status.  The applicant’s records should be corrected accordingly.

BOARD VOTE:

__lds___  __jtm___  __jlp___  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
a recommendation for relief.  As a result, the Board recommends that all
Department of the Army records of the individual concerned be corrected by
showing he was placed on the retired list effective 1 July 2005 in the rank
and grade of Sergeant First Class, E-7.




                                  __Linda D. Simmons____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060000943                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060822                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |136,06                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]