IN THE CASE OF:	  

	BOARD DATE:	  06 JANUARY 2009

	DOCKET NUMBER:  AR20080009028 


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, in three applications, essentially requests that his retirement rank and pay grade of staff sergeant (SSG)/E-6 be changed to sergeant first class (SFC)/E-7 retroactive to 1 November 1998. 

2.  The applicant essentially states that he believes he should have been placed on the Retired List in the rank and pay grade of SFC/E-7 in accordance with Title 10, U.S. Code, Section 3963.  He also states, in effect, that he was told at the time of his retirement that he could apply to be advanced on the Retired List when his active duty service plus his service on the Retired List equaled 30 years.

3.  The applicant provides "Member – 1" copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) that was issued at the time of his retirement on 31 October 1998; orders, dated 21 March 1988, which promoted him to SFC/E-7 effective 20 April 1988; orders, dated 5 June 1990, which reduced him from SFC/E-7 to SSG/E-6 effective 8 July 1990 in order to accept an Active Guard Reserve (AGR) position in the Florida Army National Guard; a self-authored letter, dated 27 May 2008, addressed to the U.S. Army Human Resources Command in St. Louis, Missouri; and a letter, dated 18 June 2008, from the Defense Finance and Accounting Service in support of his three applications.


ONSIDERATION 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 that he served in the Regular Army from 21 February 1966 to 20 February 1969, then was honorably released from active duty and transferred to the U.S. Army Reserve Control Group (Reinforcement) to complete his military service obligation.  On 20 February 1972, he was honorably discharged.  After a break in service from 21 February 1972 to 1 October 1977, he enlisted in the Army National Guard on 2 October 1977 in the rank and pay grade of sergeant/E-5.  He was ordered to active duty in an AGR status on 1 January 1982 and served continuously on active duty until 31 October 1998.  He was promoted to SSG/E-6 effective 1 March 1984 and was promoted to SFC/E-7 effective 20 April 1988.

3.  Orders, dated 5 June 1990, administratively reduced the applicant in rank and pay grade from SFC/E-7 to SSG/E-6 effective 8 July 1990 in order to accept an AGR position in the Florida Army National Guard.  

4.  On 31 October 1998, the applicant was retired after completing more than 20 years of active duty service and was placed on the Retired List on 1 November 1998.  Although his retirement orders, dated 10 July 1998, originally showed that his retired rank and pay grade were SFC/E-7, these orders were amended on 8 September 1998 to show that his retired rank and pay grade were SSG/E-6, which is what is also reflected on the DD Form 214 that was issued to him at the time of his retirement.

5.  Title 10, U.S. Code, section 3963, provides that Reserve enlisted members reduced in grade, not as a result of misconduct, shall be retired in the highest grade held in which the member served on active duty satisfactorily.  In the case of a National Guardsman, this service must have been full-time National Guard duty.
6.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his retirement rank and pay grade of SSG/E-6 should be changed to SFC/E-7 retroactive to 1 November 1998.

2.  Although the applicant was reduced in rank and pay grade from SFC/E-7 to SSG/E-6, it was not as a result of misconduct, but so that the applicant could accept an AGR position in the Florida Army National Guard.

3.  The evidence of record in this case confirms that the applicant satisfactorily served on active duty in the rank and pay grade of SFC/E-7, and that his reduction from SFC/E-7 to SSG/E-6 was not due to misconduct, and was only accomplished so that he could accept a position in the Florida Army National Guard.

4.  In view of the facts of this case, it would be appropriate at this time to correct the applicant's military records to show that his retired rank and pay grade at the time of his placement on the Retired List on 1 November 1998 were SFC/E-7.  It would also be appropriate to correct his military records to show that he was authorized to receive retired pay in the rank and pay grade of SFC/E-7 effective 1 November 1998 with entitlement to all back retired pay due as a result of this correction.

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 showing that his retired rank and pay grade at the time of his placement on the Retired List on 1 November 1998 was SFC/E-7, and that he was authorized to receive retired pay in the rank and pay grade of SFC/E-7 effective 1 November 1998 with entitlement to all back retired pay due as a result of this correction.

2.  The Board wants to thank the applicant for the sacrifices he made in service to the U.S. throughout his military career, and especially during the Vietnam War. The applicant and all Americans should be justifiably proud of his honorable service in arms.



						_________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.
ABCMR Record of Proceedings (cont)                                         AR20080014822



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ABCMR Record of Proceedings (cont)                                         AR20080009028



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