IN THE CASE OF:
BOARD DATE: 13 August 2008
DOCKET NUMBER: AR20080005872
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 that his rank and pay grade be changed retroactively from Staff Sergeant (SSG)/E-6 to Sergeant First Class (SFC)/E-7 for retirement purposes.
2. The applicant states, in effect, that the highest pay grade he obtained and held while in the military was the pay grade of E-7 and that there was a failure to adjust his grade to E-7 upon retirement.
3. The applicant provides his NGB Form 22 (Report of Separation and Record of Service) with the period ending 31 July 1997; Military Department of Indiana, Adjutant Generals Office Orders 133-46, dated 3 July 1986; Headquarters, 2nd Brigade, 38th Infantry Division, Indiana Army National Guard (INARNG) Orders 6-1, dated 25 May 1993; U.S. Army Reserve Personnel Command Orders P07-280064, dated 2 July 2002; an undated Request for Administrative Reduction letter; a Military Department of Indiana (MDI) Form 322-R (Request for Personnel Action), dated 4 December 1992; 3 DA Forms 2166-6 (Enlisted Evaluation Report); 1 DA Form 2166-7 (Enlisted Evaluation Report); and a DA Form
1059 (Service School Academic Evaluation Report), dated 8 December 1987.
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 was born on 2 July 1942. He had prior service in the active U.S. Navy and the U.S. Navy Reserve. The applicant enlisted in the INARNG on 22 July 1980. He was promoted to the rank and pay grade of SSG/E-6 on 21 November 1982.
3. Orders 133-46, dated 3 July 1986, show that the applicant was promoted to the rank and pay grade of SFC/E-7.
4. Orders 6-1, dated 25 May 1993, show the applicant was voluntarily reduced to the rank and pay grade of SSG/E-6, with a date of rank of
21 November 1982.
5. On 31 July 1997, the applicant retired and was transferred to the U.S. Army Reserve Control Group (Retired) in the rank and pay grade of SSG/E-6.
6. U.S. Army Reserve Personnel Command Orders P07-280064, dated 2 July 2002, show that the applicant was retired and placed on the retired list in the rank and grade of SSG/E-6.
7. Army Regulation 135-180 (Qualifying Service for Retired Pay Nonregular Service), paragraph 2-11c states the Retired Activities Directorate, Army Reserve Personnel Center (currently designated as 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. It states 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 an enlisted Soldier held while on active duty or in an active reserve status for at least 185 days or six calendar months.
DISCUSSION AND CONCLUSIONS:
1. Evidence of record shows that the applicant enlisted in the INANG on 22 July 1980. He was promoted to the rank and grade SFC/E-7 on 3 July 1986 and was voluntarily reduced to the rank and grade of SSG/E-6 on 25 May 1993 with an effective date of 21 November 1982. The applicant retired and was transferred to the USAR Control Group (Retired) in the rank and pay grade of SSG/E-6 and on 2 July 2002, he was placed on the retired list.
2. Evidence of record confirms that the applicant satisfactorily served in the INARNG in the rank and pay grade SFC/E-7 from 3 July 1986 through 25 May 1993. Therefore, upon his placement on the retirement list, he was entitled to be credited with the highest grade satisfactorily held in the military service. In accordance with the governing regulation, records should be corrected to show he was placed on the retired list on 2 July 2002, in the rank and pay grade of SFC/E-7.
BOARD VOTE:
____xx__ __xx____ ___xx___ 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 showing he was placed on the retired list in the rank and pay grade of SFC/E-7 effective 2 July 2002.
2. That the Defense Finance and Accounting Service pay to the applicant any retired pay due him 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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