RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  4 December 2007
	DOCKET NUMBER:  AR20070009467 


	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. Mohammed R. Elhaj

Analyst


The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Ms. Eloise C. Prendergast

Member

Mr. James R. Hastie

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 her retired pay be computed based on her highest grade held, that of Master Sergeant (MSG/E-8), upon the anniversary of her attainment of 30 years of active service plus service on the retired list.

2.  The applicant states, in effect, she was promoted to MSG on 1 October 1999 and incurred a 2-year active duty service obligation (ADSO).  On 30 September 2000, she retired from the Active Guard Reserve (AGR) program with 20 years, 5 months, and 2 days of creditable active service; her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows her rank and pay grade as MSG/E-8.  However, her retirement order from the Colorado Army National Guard (COARNG) shows her rank on the standard name line of the orders as "MSG," but her retired grade of rank as Sergeant First Class (SFC/E7).

3.  The applicant provided the following additional documentary evidence in support of her application:

	a.  DD Form 214 (Certificate of Release from Active Duty);

	b.  Promotion Orders to MSG/E-8, dated 18 January 2000;

	c.  Retirement Orders 128-002, dated 5 July 2000; and 

	d.  DA Form 2-1 (Personnel Qualification Record).

CONSIDERATION OF EVIDENCE: 

1.  The applicant's records show that she initially entered military service with the North Dakota Army National Guard (NDARNG), serving from 9 November 1977 through 15 September 1978.  Following a break in service, she enlisted in the Regular Army from 16 October 1979 through 15 October 1983.  Following a second break in service, she enlisted in the COARNG on 29 August 1984.  On 1 September 1984, she entered the AGR program.

2.  Effective 11 January 2000, the applicant was promoted to MSG/E-8 while serving on active duty in an AGR status performing Full-Time National Guard Duty (FTNGD) in Englewood, CO.  Her date of rank was established as 1 October 1999.


3.  On 5 July 2000, Departments of the Army and Air Force, State of Colorado, Department of Military Affairs published Orders 128-002.  These orders released the applicant from active duty effective 30 September 2000 and placed her on the Retired List effective 1 October 2000.  The statutory authority for the applicant’s retirement cited in these orders was Title 10, United States Code, section 3914 (10 USC 3914).  These orders established the applicant's retired grade of rank as SFC/E-7; however, they show her rank on the standard name line of the orders as MSG.

4.  On 30 September 2000, the Fort Carson Transition Point issued the applicant’s DD Form 214.  Her rank and pay grade are shown as MSG/E-8.  The type of separation is shown as "retirement" and the separation authority is shown as Army Regulation (AR) 635-200, chapter 12.

5.  Coordination with Retired and Annuitant Pay, Defense Finance and Accounting Service (DFAS), London, KY shows the applicant receives retired pay based upon pay grade SFC/E-7, as provided in the State of Colorado, Department of Military Affairs Orders Number 128-002, dated 5 July 2000.

6.  10 USC 3914 provides the legal authority for the retirement of enlisted members with at least 20, but less than 30 years of active military service.

7.  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 retirement.

8.  10 USC 3963 – Highest grade held satisfactorily: Reserve enlisted members reduced in grade not as a result of the member’s misconduct – states:

	(a) 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.

	(b) 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 

		(2) was previously administratively reduced in grade not as a result of the member’s own misconduct, as determined by the Secretary of the Army.

	(c) This section applies with respect to Reserve enlisted members who are retired under section 3914 of this title after September 30, 1996. 

9.  AR 635-200 (Active Duty Enlisted Administrative Separations), then and currently in effect, 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.  Paragraph 12-8(d) 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.

10.  AR 15-80 (Army Grade Determination Review Board and Grade Determinations) establishes policies, procedures, and responsibilities of the Army Grade Determination Review Board (AGDRB) and other organizations delegated authority to make grade determinations on behalf of the Secretary of the Army.  It discusses how ADSO policies affect grade determinations and states, “Soldiers promoted to sergeant first class, master sergeant/first sergeant, or sergeant major/command sergeant major incur a 2-year ADSO (AR 600–8–19).  If a Soldier requests retirement effective before the expiration of this ADSO, a retirement approval authority can deny the request or CG, PERSCOM [now Commanding General, US Army Human Resources Command, Alexandria, VA] can waive the ADSO and approve the retirement.  A promoted enlisted Soldier may not be reduced administratively only to terminate a promotion ADSO, and the waiver of an ADSO will normally result in the individual’s retirement in the grade to which promoted if that is the highest grade satisfactorily held.”

11.  National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management), dated 1 March 1997, contains guidance regarding grade actions authorized based on the non-completion of a service obligation.  Paragraph 11-10 of this regulation provides, in pertinent part, that Soldiers who accept promotions will fulfill the service remaining requirements before transfer to the Retired Reserve, voluntary retirement from active duty length of service, or expiration of term of service (ETS).  If they do not, the will be separated in the next lower grade unless granted an exception to policy by the Chief, National Guard Bureau.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was promoted to MSG effective 11 January 2000 with a date of rank of 1 October 1999.  When she retired on 1 October 2000, the COARNG published Orders 128-002 releasing the applicant from active duty effective 30 September 2000 and placing her on the Retired List effective 1 October 2000. The statutory authority for the retirement was 10 USC 3914.  The orders established the applicant's retired grade of rank as SFC/E-7.

2.  The applicant's retired pay is based on her retired grade of rank of SFC/E-7 as shown in Orders 128-002.  She requests her retired pay be recalculated based on a retired grade of rank of MSG/E-8 when her combined active service and service on the retired list equals 30 years.

3.  The evidence of record confirms the statutory authority for the applicant’s retirement was 10 USC 3914 [and, by extension, the governing statute regarding her retired grade was 10 USC 3961(b)].  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 retirement.

4.  The laws or the regulation the applicant was separated under that govern 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 Army enlisted separations regulation (AR 635-200), which stipulates that a promoted individual may not be administratively reduced to terminate a promotion service obligation.

5.  Although not specifically stated in Orders 128-002, it appears the COARNG relied upon NGR 600-200 to retire the applicant at the next lower grade for failure to fulfill the 2-year service obligation incurred when she accepted promotion to MSG.  However, in view of the facts of this case, it appears NGR 600-200 is not in compliance with the governing retirement statutes.  Therefore, it’s use as the authority to administratively reduce the applicant based on her not completing the 
promotion service obligation was inappropriate.  As a result, the applicant’s ARNG records and the applicant’s Department of the Army records should be corrected to show the relief being granted.  Therefore, the applicant’s administrative reduction should be revoked, and she should be placed on the Retired List in the grade of MSG/E-8, effective 1 October 2000.  She should also be provided all back retired pay due as a result of this action.

BOARD VOTE:

__lds___  __ecp___  __jrh___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that the state Army National Guard records and the Department of the Army records of the individual concerned be corrected, as appropriate, by: 

	a.  revoking Orders 128-002, dated 5 July 2000, showing the applicant's retired grade as SFC/E-7; and

	b.  issuing new Orders retiring the applicant effective 1 October 2000 and showing her retired grade as MSG/E-8; and

	c.  placing her on the Retired List effective 1 October 2000 in the grade of MSG/E-8.

2.  The Board further recommends that the individual concerned be paid any pay and allowance adjustment resulting from her retired grade adjustment.



							Linda D. Simmons
______________________
          CHAIRPERSON



INDEX

CASE ID
AR20070009467
SUFFIX

RECON

DATE BOARDED
20071204
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
(GRANT)
REVIEW AUTHORITY

ISSUES         1.
129.0400
2.

3.

4.

5.

6.