RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  15 November 2007
	DOCKET NUMBER:  AR20070011375 


	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. Margaret K. Patterson

Chairperson

Mr. Larry C. Bergquist

Member

Mr. Dale E. DeBruler

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 pay be computed based on his highest grade held, that of Staff Sergeant (SSG/E-6), upon the anniversary of his attainment of 30 years of active service plus service on the retired list.

2.  The applicant states that there is no error in his records.  He further adds, however, that in accordance with paragraph 12-6b of Army Regulation 635-200 (Personnel Separations), he is entitled to receive retired pay at the SSG/E-6 grade.

3.  The applicant provided a copy of his promotion Orders to SSG/E-6, dated 27 January 1994 in support of his application.

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 records show that he initially entered military service with the U.S. Marine Corps (USMC) on 4 June 1969 for a period of 4 years.  He was honorably released from USMC on 1 June 1973.  After a break in service, he enlisted in the Regular Army for a period of 3 years on 28 December 1978.  He was honorably discharged on 27 December 1981.  He further enlisted in the Washington Army National Guard (WARNG) on 28 October 1983 until 9 January 1984 when he joined the Active Guard Reserve (AGR) program where he remained until he retired on 31 January 1997. 

3.  Effective 27 January 1994, the applicant was promoted to SSG/E-6 while serving on active duty in an AGR status performing Full-Time National Guard Duty (FTNGD) in Anacortes, Washington.  His date of rank was established as 27 January 1994.
4.  On 3 November 1994, Headquarters, 81st Infantry Heavy Separate Brigade (Mechanized), Seattle, Washington, published Orders Number 61-2, reducing the applicant from SSG/E-6 to the grade of sergeant (SGT/E-5) with an effective date of 3 November 1994.  The Orders cited the reason as a voluntary reduction at Soldier's request and in accordance with paragraphs 6-5, 6-43, and 6-44(f) of National Guard Regulation 600-200 (Enlisted Personnel Management).  His date of rank to SGT/E-5 was established as 2 November 1981.

5.  On 6 June 1996, the applicant requested active duty retirement with an effective date of 31 January 1997.

6.  On 10 June 1996, Headquarters Military Department, State of Washington, Tacoma, Washington, published Orders Number 161-2.  These orders released the applicant from active duty effective 31 January 1997 and placed him on the Retired List effective 1 February 1997.  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 SGT/E-5.

7.  On 31 January 1997, the Fort Lewis, Washington, Transition Point issued the applicant’s DD Form 214.  His rank and pay grade are shown as SGT/E-5.  The type of separation is shown as "retirement" and the separation authority is shown as Army Regulation (AR) 635-200, chapter 12.

8.  Coordination with Retired and Annuitant Pay, Defense Finance and Accounting Service (DFAS), London, KY shows the applicant receives retired pay based upon pay grade SGT/E-5, as provided in the State of Washington, Headquarters Military Department Orders Number 161-2, dated 10 June 1996.

9.  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.

10.  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.

11.  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. 

12.  AR 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.  

13.  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 staff sergeant incur a 12-month 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.”

14.  National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management) contains guidance 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 applicant was promoted to SSG/E-6 effective 27 January 1994 with a date of rank of 27 January 1994.  When he retired on 1 February 1997, the WAARNG published Orders 161-2 releasing him from active duty effective 31 January 1997 and placing him on the Retired List effective 1 February 1997. The statutory authority for the retirement was 10 USC 3914.  The orders established the applicant's retired grade of rank as SGT/E-5.

2.  The applicant's retired pay is based on his retired grade of rank of SGT/E-5 as shown in Orders 161-2.  He requests his retired pay be recalculated based on a retired grade of rank of SSG/E-6 when his 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 his 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.  In view of the foregoing evidence, the applicant should be placed on the Retired List in the grade of SSG/E-6, effective 1 February 1997.  He should also be provided all back retired pay due as a result of this action

BOARD VOTE:

__mkp___  __lcb___  __ded___  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 adjusting his retired to grade to SSG/E-6 effective 1 February 1997 and that the individual concerned be paid any pay and allowance adjustment resulting from his retired grade adjustment.




							Margaret K. Patterson
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20070011375
SUFFIX

RECON

DATE BOARDED
20071115
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
(GRANT)
REVIEW AUTHORITY

ISSUES         1.
129.0400
2.

3.

4.

5.

6.