IN THE CASE OF:
BOARD DATE: 9 September 2008
DOCKET NUMBER: AR20080002803
THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:
1. Application for correction of military records (with supporting documents provided, if any).
2. Military Personnel Records and advisory opinions (if any).
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:
1. The applicant requests, in a modified application, that his records be corrected to show his retired rank and grade as Sergeant First Class (SFC), E-7, with all due retired pay.
2. The applicant states that he should have been retired in the rank and grade of SFC, E-7. He had previously been administratively reduced because no E-7 slots were available.
3. The applicant provides an email from the Army Review Boards Agency legal section.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant enlisted in the Regular Army on 10 January 1977. He was promoted to SFC, E-7, on 14 December 1987. He was honorably discharged on 29 April 1988 under the Fiscal Year 1988 Early Transition Program.
3. On 27 January 1989, the applicant enlisted in the Army National Guard in the rank and grade of Staff Sergeant (SSG), E-6.
4. On 18 July 1989, the applicant entered active duty in an Active Guard Reserve status.
5. On 31 March 1998, the applicant was released from active duty in the rank and grade of SSG, E-6, after completing sufficient service for retirement under the provisions of Title 10, U. S. Code, section 3914. He was placed on the retired list in the rank and grade of SSG, E-6, on the following day.
6. Title 10, U. S. Code, section 3963(a), states 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. Subsection 3963(b) states 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 (b) was previously administratively reduced in grade not as a result of the members own misconduct, as determined by the Secretary of the Army.
DISCUSSION AND CONCLUSIONS:
1. The applicant had been promoted to SFC, E-7, on 14 December 1987, while he was in the Regular Army. He was an SFC, E-7, when he was discharged from the Regular Army on 29 April 1988.
2. The applicant was administratively reduced to the rank and grade of SSG, E-6, when he enlisted in the Army National Guard on 27 January 1989. He was placed on the retired list as an SSG, E-6, on 1 April 1998 after he retired from active duty under the provisions of Title 10, section 3914.
3. Since the evidence of record shows that the applicant was administratively reduced to SSG, E-6, not as a result of his own misconduct, it appears that he
met the criteria outlined in Title 10, U. S. Code, section 3963(a) to have been placed on the retired list in the rank and grade of SFC, E-7, on 1 April 1998. His records should be corrected to reflect this.
BOARD VOTE:
___xx___ ___xx___ ____xx__ 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:
a. showing he was placed on the retired list on 1 April 1998 in the rank and grade of Sergeant First Class, E-7; and
b. paying to him all retired pay due as a result of the above correction.
_______ xxxx_______ ___
CHAIRPERSON
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
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