RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  31 January 2008
	DOCKET NUMBER:  AR20070009965 


	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

Ms. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Mr. John Infante

Chairperson

Mr. Eric N. Andersen

Member

Mr. David K. Haasenritter 

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, correction of his records to show he was retired in the rank and pay grade of sergeant (SGT/E-5), instead of specialist four (SP4/E-4). 

2.  The applicant states, in effect, that if you held a certain rank successfully for 6 months, you should be able to retire at that rank.  He was a SGT for 5 years.  He spent 2 years in Vietnam and completed 23 years total service. 

3.  The applicant provides a copy of promotion orders to SGT and a copy of reduction orders to SP4 in support of his request. 

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's military record shows he enlisted in the South Carolina Army National Guard (SCARNG), on 26 November 1971, in the rank and pay grade of SP4/E-4, with prior service.  His date of birth (DOB) is 10 July 1947.  He was promoted to SGT, with an effective date and date of rank (DOR) of 18 May 1981.

3.  The applicant was reduced to SP4, with an effective date of 10 September 1986 and DOR of 26 June 1975, under the provisions of National Guard Regulation
600-200, paragraph 6-33, due to inefficiency (without prejudice).

4.  The applicant served until he was honorably discharged from the SCARNG on 10 June 1988, in the rank of SPC [converted rank].  He was transferred to the United States Army Reserve (USAR) Control Group (Inactive).  

5.  The applicant reenlisted in the SCARNG, on 29 March 1996, in the rank and pay grade of SPC/E-4.
6.  On 31 March 2000, the Office of the State Adjutant General notified the applicant that he had completed the required years of service to be eligible for retired pay upon reaching age 60 (20-Year Letter).

7.  The applicant was honorably discharged from the SCARNG and was assigned to the USAR Control Group (Retired) effective 28 March 2000, in the rank of SPC.  He was transferred to the Retired Reserve, effective 29 March 2000.

8.  On 12 June 2007, he was placed on the Retired List effective 10 July 2007, in the rank and pay grade of SPC/E-4.

9.  The applicant's Summary of Retirement Points shows that he has completed 20 years, 7 months, and 13 days, of qualifying service for retirement purposes.

10.  National Guard Regulation 600-200 establishes standards, policies, and procedures for the management of ARNG enlisted Soldiers.  Chapter 6, in effect at that time, pertained to reductions.  Paragraph 6-33 stated that reduction of enlisted personnel will be announced in orders published by the reduction authority.  Orders will cite the specific reason for reduction, such as "inefficiency" or "misconduct."  Reduction made at the Soldier’s request will state whether the action was taken "with or without prejudice."  (Prejudice exists when the Soldier could face adverse action but is allowed to request reduction to avoid it.)

11.  Title 10, U. S. Code (USC), section 12731 establishes the age and service requirements for receipt of non-regular retired pay for members with 20 years or more of qualifying service.  Computation of the actual retired pay payable at age 60 to a non-regular retiree is calculated pursuant to title 10, USC, 12739 in conjunction with Title 10, USC 1406(b)(2).  Under Title 10, USC, section 1406(b)(2), an enlisted Soldier is entitled to advancement to the highest grade served satisfactorily at any time in the Armed Forces, as determined by the Secretary of the Army.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant was promoted to SGT/E-5, effective 18 May 1981, and served in that grade for over 5 years.  He was reduced to SP4/E-4, effective 10 September 1986, with a DOR of 26 June 1975, for inefficiency (without prejudice).  He was honorably discharged from the SCARNG, on 28 March 2000, in the rank of SPC, and was transferred to the Retired Reserve, effective 29 March 2000.  He was placed on the Retired List, effective 10 July 2007, in the rank and pay grade of SPC/E-4.
2.  A review of the applicant's military service record and Summary of Retirement Points shows that he did not serve in the grade of E-5 satisfactorily because of his reduction for inefficiency.  Therefore, he is not entitled to correction of his records to show that he retired in pay grade E-5, effective 29 March 2000.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___JI___  ___EA___  __DH____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




	______John Infante_______
          		CHAIRPERSON




INDEX

CASE ID
AR20070009965
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20080131
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
20000328
DISCHARGE AUTHORITY
NGR 600-200 PARA 8-27U 7 8-26i
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
131
2.

3.

4.

5.

6.