RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  12 February 2008 
	DOCKET NUMBER:  AR20070013429 


	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:


Ms. Kathleen Newman

Chairperson

Mr. Jose A. Martinez 

Member

Ms. Susan A. Powers

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 staff sergeant (SSG/E-6), instead of Sergeant (SGT/E-5). 

2.  The applicant states, in effect, that his retired rank and pay grade are incorrect.  He states that according to National Guard regulations upon retirement he is entitled to retire at the highest rank or pay grade held.  

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and a copy of his NGB (National Guard Bureau) Form 22 (Report of Separation and Record of Service) 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 records show he enlisted in the California Army National Guard (CAARNG), on 6 March 1975, in the rank and pay grade of SP4/E-4, with prior service.  His date of birth (DOB) is 18 November 1946.  He was promoted to SSG/E-6, with an effective date and date of rank (DOR) of 11 December 1981.

3.  The applicant was reduced to SGT/E-5, with an effective date and DOR of 8 April 1984, under the provisions of National Guard Regulation 600-200, paragraph 6-32, for misconduct.



4.  The applicant was honorably discharged from the CAARNG and was assigned to the USAR Control Group (Retired Reserve) effective 5 April 1993, in the rank of SGT.  He was transferred to the Retired Reserve, effective 5 April 1993.

5.  On 6 July 1993, the Office of the Adjutant General, State of California, 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).

6.  The applicant's Summary of Retirement Points, dated 21 January 1994,  shows that he had completed 20 years and 29 days of qualifying service for retirement purposes

7.  On 20 September 2006, he was placed on the Retired List, effective 18 November 2006, in the rank and pay grade of SGT/E-5.

8.  An advisory opinion was provided by the Supervisor, Retirements and Annuities, US Army Human Resources Command (AHRC), dated 15 October 2007.  The opinion states that the applicant's military records were reviewed by their office.  The applicant requested that he be retired at the highest grade held. In accordance with Title 10, United States Code (USC), Section 1406(b)(2), qualified individuals were required to be granted retired pay in the highest grade they satisfactorily held at any time in the Armed Forces.  For purposes of retirement, the highest grade is defined as the highest enlisted or commissioned grade held for 185 days or for warrant officers 31 days.  The opinion states that the applicant was promoted to SSG/E-6 on 11 December 1981, and held this rank for over 185 days.  However, he was reduced in grade from SSG/E-6 to SGT/E-5 by reason of misconduct on 8 April 1994.  The opinion concluded that no action could be taken by their officer to correct his retired pay grade. 

9.  The applicant was provided a copy of the advisory opinion for possible comment prior to consideration of this case.  The applicant was provided 30 days to submit matters on his behalf.  The applicant failed to respond within the time allotted. 

10.  National Guard Regulation (NGR) 600-200, establishes the standards, policies and procedures for the management of ARNG enlisted Soldiers and specifically the policy for enlisted promotion, appointment, and reduction.  Section V pertains to reduction.  Paragraph 6-32, in effect, at the time provides 



that unless otherwise directed by the State Adjutant General, commanders who have the authority to promote enlisted personnel also have the authority to reduce enlisted personnel.  The administrative procedures provided in Army Regulation 600-200 will be used as a guide.  These procedures must be strictly followed when individuals are reduced for inefficiency.

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 SSG/E-6, effective 11 December 1981, and served in that grade for 2 years, 3 months, and 27 days.  He was reduced to SGT/E-5 with an effective date and DOR of 8 April 1984, for misconduct.  He was honorably discharged from the CAARNG, on 5 April 1993, in the rank of SGT, and was transferred to the Retired Reserve, effective 5 April 1993.  He was placed on the Retired List, effective 18 November 2006, in the rank and pay grade of SSG/E-5.

2.  A review of the applicant's military service record and Summary of Retirement Points shows that he did not serve in pay grade E-6 satisfactorily because of his reduction for misconduct.  Therefore, he is not entitled to correction of his records to show that he retired in pay grade E-6, effective 5 April 1993.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___SP __  _JM_____  ____KN_  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.




_____Kathleen Newman_______
          CHAIRPERSON




INDEX

CASE ID
AR20070013429
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20080212
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
20061118
DISCHARGE AUTHORITY
NGR 600-200, PARA 8-27V . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.