IN THE CASE OF:
BOARD DATE: 14 August 2008
DOCKET NUMBER: AR20080006681
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 retired grade be corrected to sergeant first class (SFC)/E-7 and that he receive all back pay and allowances to which he is entitled.
2. The applicant states, in effect, that he served as a gunny sergeant/E-7 in the U.S. Marine Corps (USMC) and that he should have been retired at the highest grade satisfactorily held. He contends that he was denied retirement as an SFC/E-7 because the Army indicated that there was no record that he served in the USMC.
3. The applicant provides a copy of his DD Forms 214 (Report of Separation from Active Duty) from the USMC; copies of portions of his USMC service record; copies of his Leave and Earning Statements.
CONSIDERATION OF EVIDENCE:
1. The applicant was born on 4 June 1946.
2. The applicant had prior service in the USMC Reserve and USMC. His final DD Form 214 from the USMC, with an effective date of 9 April 1977, shows that he held the rank and grade of gunnery sergeant/E-7 (the equivalent of SFC/E-7 in the Army). He was promoted to gunnery sergeant on 1 November 1976. The applicant also provided copies of his official USMC records showing he held the rank and grade of gunnery sergeant/E-7, as well as copies of his Leave and Earning Statements showing he was paid as a gunnery sergeant/E-7.
2. The applicant served in the Kansas Army National Guard (KSARNG) from
30 October 1989 through 1 April 1995. He held the rank and grade of staff sergeant (SSG)/E-6. He was discharged and transferred to the U.S. Army Reserve (USAR) Control Group "Retired."
3. Orders P06-686151, Department of the Army, U.S. Army Human Resources Command, St., Louis, dated 8 June 2006, placed the applicant on the Retired List as a SSG/E-6, under the provisions of Title 10, U.S. Code, Section 12731.
4. Title 10, U.S. Code, Section 1406, stipulates that a person who is entitled to retired pay under Section 12731 of this title, the retired pay is the monthly basic pay, determined at the rates applicable on the date when the retired pay is granted, of the highest grade held satisfactorily by the person at any time in the armed forces.
5. Title 10, U.S. Code, section 12731(a) states that a person is entitled, upon application, to retired pay if the person is at least 60 years of age, has performed at least 20 years of qualifying service, and the last eight years of qualifying service have been performed while a member of the Reserve Component.
6. Army Regulation 135-180 (Qualifying Service for Retired Pay Nonregular Service) implements statutory authorities governing the granting of "retired pay" to Soldiers and former Reserve components Soldiers. Paragraph 2-11 stipulates, in pertinent part, that a person granted retired pay will receive such pay at an annual rate equal to 2½ percent of the active duty annual basic pay which the individual would receive if serving on active duty, on the effective date of granting of retired pay, in the highest grade (temporary or permanent) satisfactorily held by him during his or her entire period of service multiplied by the number equal to the number of years, and any fraction thereof, on the basis of 360 days per year (years for percentage purposes). If a Soldier was transferred to the Retired Reserve or discharged on or after 25 February 1975, 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
6 calendar months.
DISCUSSION AND CONCLUSIONS:
1. The applicant had previous active service in the USMC and was promoted to gunny sergeant/E-7 on 1 November 1976. He held that grade for 5 months and 8 days prior to his discharge.
2. In accordance with the regulatory guidance above, in order for the applicant to be retired in the rank and grade of SFC/E-7 as his last grade satisfactorily held, he needed to hold that rank and grade on active duty for at least 185 days or
6 calendar months. The applicant did not meet this requirement, and was properly retired in the rank and grade of SSG/E-6.
3. In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant did not submit any evidence that would satisfy this requirement.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
___xxx__ __xxx___ __xxx___ 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.
XXX
_______ _ _______ ___
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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