IN THE CASE OF:	    

		BOARD DATE:	         11 September 2008

		DOCKET NUMBER:  AR20080004188 


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 effect, that he be advanced on the retired list to the rank of sergeant first class (SFC), E-7.

2.  The applicant states that he was administratively reduced from SFC to staff sergeant (SSG), E-6.
 
3.  The applicant provided a copy of his promotion orders, dated 4 January 1991; his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 2 October 1991; his 20-year letter, dated 7 November 1991; and his Retirement Points Accounting System (RPAS) Capture Worksheet, undated, 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 enlisted in the Louisiana Army National Guard (LAARNG) on 13 November 1984.  

3.  On 29 November 1990, the applicant was ordered to active duty in support of Operation Desert Shield/Desert Storm.  

4.  Headquarters, 204th Area Support Group, LAARNG Orders 001-2, dated
4 January 1991, promoted the applicant to the rank of SFC, E-7 with an effective date of 4 January 1991.  The orders state, in effect, that a Soldier who has not completed the appropriate Noncommissioned Officer Education System (NCOES) or Battle Skills Course is deferred, but must complete it within one calendar year after the end of Active Federal Service (AFS) or the promotion is not valid and will not be effective if the Soldier is not in a promotable status on the effective date of promotion.

5.  The applicant's DD Form 214 shows he was honorably released from active duty on 2 October 1991 at the Expiration of his Term of Service (ETS).  

6.  The applicant received his Notification of Eligibility for Retired Pay at 
Age 60 (20-Year Letter) on 7 November 1991.

7.  Department of the Army, 204th Area Support Group, Orders 18-3, dated
19 April 1995, shows the applicant was reduced from the rank of SFC, E-7 to the rank of SSG, E-6 with an effective date of 1 May 1995.  The orders indicate he was reduced in accordance with National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 6-44i.

8.  Department of the Army and the Air Force, Headquarters, Louisiana National Guard, Office of The Adjutant General, Orders 225-008, dated 13 August 1998, show the applicant was honorably discharged from the Army National Guard on 15 October 1998 in the rank of SSG, E-6 and was assigned to the U.S. Army Reserve (USAR) Control Group (Retired Reserve.)

9.   Department of the Army, U.S. Army Human Resources Command, St. Louis, Missouri Orders P11-794055, dated 1 November 2007, show the applicant was retired and placed on the retired list on 14 November 2007 in the rank of SSG, 
E-6.

10.  Army Regulation 135-180 (Qualifying Service for Retired Pay Nonregular Service) states, in pertinent part, that a person granted retired pay will receive such pay…in the highest grade (temporary or permanent) satisfactorily held by him or her during his or her entire period of service.  Service in the highest grade will not be deemed satisfactory…if it is determined that any of the following factors exist:  (a) revision to a lower grade was expressly for prejudice or cause, due to misconduct, or punishment pursuant to Article 15, Uniform Code of Military Justice, or court-martial; or (b) there is information in the Soldier’s service record to indicate clearly that the highest grade was not served satisfactorily.

11.  Army Regulation 135-180, paragraph 1-4 states that retired pay is pay granted Soldiers and former Reserve components Soldiers under Title 10, United States Code, section 1331 after completion of 20 or more years of qualifying service and upon attaining age 60.  This pay is based on the highest grade satisfactorily held at any time during an individual’s entire period of service, other than in an inactive section of a Reserve component.

12.  Army Regulation 135-180, paragraph 2-11c states that the Retired Activities Directorate, ARPERCEN [Army Reserve Personnel Center currently known as the Human Resources Command-St. Louis] will screen each retirement applicant’s record to determine the highest grade held by him or her during his or her military service.  In arriving at the highest grade satisfactorily held, one of the criteria indicates that if the Soldier was transferred to the Retired Reserve or discharged on or after 25 February 1975, the retired grade will be that grade which a commissioned officer or enlisted Soldier held while on active duty or in an active reserve status for at least 185 days or six calendar months.

13.  NGR 600-200, paragraph 6-44i states Soldiers who lose positions due to unit reorganization, inactivation or full-time support utilization requirements, will be involuntarily reduced if reassignment is not appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be advanced on the retired list to the rank of sergeant first class (SFC), E-7.

2.  The evidence of record shows the applicant was reduced to the rank of SSG, pay grade E-6 with an effective date of 1 May 1995.  His reduction orders indicate it was due to involuntary reduction due to a loss of his E-7 position.

3.  The applicant's record indicates that he retired on 14 November 2007 and held the rank and grade of SSG, E-6 on the date of his retirement.

4.  Advancement on the retired list to highest grade held is based on satisfactory service in that grade.  The evidence of record indicates the applicant satisfactorily served as an SFC, E-7 for more than 185 days or six calendar 


months.  Therefore, the applicant has met the criteria under Army Regulation 
135-180 which shows there is no information in the Soldier’s service record to indicate clearly that the highest grade he held was not served satisfactorily.

5.  It appears that an error exists in this case regarding the applicant's retirement grade.  Therefore, it would be appropriate to amend the applicant's retirement orders to show he was placed on the retired list in the rank and pay grade of E-7.

BOARD VOTE:

___X____  ___X____  __X_ ___  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 all Department of the Army records of the individual concerned be corrected by amending Department of the Army, U.S. Army Human Resources Command, St. Louis, Missouri Orders P11-794055, dated 1 November 2007, to show he was retired and placed on the retired list on 14 November 2007 in the retired grade of SFC, E-7.

2.  That, upon implementation of the correction in paragraph 1 above, the Defense Finance and Accounting Service should audit the retired pay account of the individual concerned to determine all monies due to him and that he be paid all monies due to him as a result of that correction.



      ___________X___________
               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.
ABCMR Record of Proceedings (cont)                                         AR20080004188



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ABCMR Record of Proceedings (cont)                                         AR20080004188



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