RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        3 July 2007
      DOCKET NUMBER:  AR20060014209


      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.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Eric N. Andersen              |     |Chairperson          |
|     |Mr. Scott W. Faught               |     |Member               |
|     |Ms. Ernestine R. Fields           |     |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:

1.  The applicant requests, in effect, that his retired grade be changed
from staff sergeant/E-6 (SSG/E-6) to sergeant first class/E-7 (SFC/E-7).

2.  The applicant states, in effect, that his retirement grade should be
SFC/E-7.

3.  The applicant provides the following documents in support of his
application:  Enlisted Qualification Record (DA Form 20); Extension of
Enlistment
(AGMO Form 4); Survivor Benefit Plan Election Certificate (DD form 1883);
Report of Medical Examination (SF 88); and Report of Medical History (SF
89).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 30 August 1990, the date of his retirement.  The
application submitted in this case is dated 29 September 1996.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitations if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant's record a Notification of Eligibility for Retired Pay at
Age 60 (20-Year Letter) issued by the National Guard Bureau (NGB) on 28
January 1975.  The address line of this letter shows the applicant's grade
as SSG/E-6.

4.  The record also contains a Report of Separation and Record of Service
(NGB Form 22) issued to the applicant on 1 July 1968.  This document
confirms the applicant was discharged from the Army National Guard (ARNG)
and from the Reserve of the Army on 1 July 1968, by reason of incompatible
occupation.  This document confirms the applicant held the grade of SSG/E-6
on the date of his discharge.

5.  United States Army Reserve Personnel Center (ARPERSCEN) Orders Number P-
01-000621, dated 22 January 1991, authorized the applicant's placement on
the Retired List, effective 30 August 1990, in the grade of
SSG/E-6.
6.  The applicant provides a copy of a DA Form 20, which he last audited on

1 July 1968.  Item 33 (Appointments and Reductions) shows he was promoted
to SFC/E-7 on 3 December 1962; however, it also shows he was subsequently
reduced to SSG/E-6 in 1965.  His record is void of any documents that
contain facts and circumstances related to his reduction, or that confirm
his reduction was not for cause.

7.  The applicant also provides the following documents that list his grade
as SFC/E-7:  DD Form 1883, dated 6 February 1980; SFs 88, dated 23 June
1961 and 18 June 1965; SFs 89, dated 23 June 1961 and 18 June 1965; and
AGMO Form 4, dated 23 June 1963.

8.  10 USC 12731 provides the legal authority for age and service (non-
regular) retirements.  10 USC 1406 provides the legal authority for
establishing the retired pay base for members who first became members
before September 8, 1980. Paragraph (b)(2) contains guidance on non-regular
service retirement.  It states, in pertinent part, that in the case of a
person who is entitled to retired pay under section 12731 of this title,
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 AND CONCLUSIONS:

1.  The applicant's contention that he is entitled to receive retired pay
in the grade of SFC/E-7 was carefully considered.  However, there is
insufficient evidence to support granting the requested relief.

2.  By law and regulation, a member is authorized to receive non-regular
retired pay in the highest grade held satisfactorily by that person at any
time in the Armed Forces.  Although the applicant's record shows he held
the grade of SFC/E-7, the record is void of the facts and circumstances
surrounding his reduction to SSG/E-6.

3.  The applicant's record does contain a NGB Form 22 that confirms he held
the grade of SSG/E-6 at the time of his discharge from the ARNG and
ARPERSCEN retirement orders that confirm he was placed on the Retired List
in that grade.  Absent evidence to the contrary or to support a
satisfactory service determination for his SFC/E-7 grade, there is a
presumption of regularity attached to the retired grade in which he was
placed on the Retired List.  Therefore, there is an insufficient
evidentiary basis to support granting the requested relief.

4.  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.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 30 August 1990, the date he was placed
on the Retired List.  Therefore, the time for him to file a request for
correction of any error or injustice expired on 29 August 1993.  He failed
to file within the 3-year statute of limitations and has not provided a
compelling explanation or evidence to show that it would be in the interest
of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___ENA _  __SWF__  __EIF ___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate
the existence of a probable error or injustice.  Therefore, the Board
determined that the overall merits of this case are insufficient as a basis
for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




                                  _____Eric N. Andersen ____
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20060014209                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/07/03                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1990/08/30                              |
|DISCHARGE AUTHORITY     |10 USC 1331                             |
|DISCHARGE REASON        |Retirement                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |144.9213                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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