IN THE CASE OF:	  

		BOARD DATE:	        26 AUGUST 2008

		DOCKET NUMBER:  AR20080009700 


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 advancement on the Retired List to the rank of sergeant first class (E-7).  He also request amendment of his retirement orders to show that he retired in the rank of sergeant first class.

2.  The applicant states that he was promoted to the rank of sergeant first class on 15 April 1981 and that he held his rank until 20 September 1983 when he accepted a full time position in the Active Guard Reserve (AGR) program.  He states that when he accepted the position in the AGR, he was required to agree to a reduction in rank and pay grade to staff sergeant (E-6).  He states that he served in the AGR position as an E-6 until he retired on 31 July 1998.  He states that his total military service at the time of his retirement was 30 years, 6 months and 15 days as reflected in his orders and that 20 years of his service were in an active status.  He states that Army Regulation 635-200, paragraph 12-6b provides for the advancement to the highest successfully held active duty grade whenever a Soldier has completed 30 years of service.  He states that paragraph 12-6a of AR 635-200 indicates that annual training for purposes of this regulation, is considered active duty service.  The applicant concludes by stating that in the 2-year period that he held the rank of sergeant first class, he attended at least two and as many as three annual training periods, which totaled over 20 points.  

3.  The applicant provides in support of his application, a self-authored memorandum addressed to the Commander, United States Army Reserve Personnel Center, dated 30 March 1998, requesting that a review be made to 

determine his appropriate retirement grade; Headquarters, 166th Support Group, Fort Buchanan, Puerto Rico Orders 53-14 dated 15 April 1981, promoting him to the pay grade of E-7; Headquarters, 7581st United States Army Garrison, Fort Buchanan Orders 164-3, dated 20 September 1983, reducing him to the pay grade of E-6 without prejudice; a copy of his Certificate of Release or Discharge from Active Duty (DD Form 214) dated 31 July 1998; a copy of his DD Form 214 (Report of Separation from Active Duty) dated 10 March 1977; a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) dated 4 January 1968; a self- authored "Letter of Intent" dated 14 May 2008; two pages from Army Regulation 635-200 (Personnel Separations - Enlisted Personnel); and one page from Army Regulation 135-180 (Qualifying Service for Retired Pay for Nonregular Service).

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 was inducted into the Army of the United States on 4 January 1968 and he successfully completed his training as a unit organization supply specialist.

3.  After completing 1 year, 11 months, and 8 days of total active service, he was honorably released from active duty on 11 December 1969, and transferred to the United States Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining military service obligation.

4.  On 15 February 1974, the applicant enlisted in the Regular Army for 3 years, in the pay grade of E-2.  

5.  He was promoted to the pay grade of E-3 on 1 August 1974; he was promoted to the pay grade of E-4 on 1 November 1974; and he was promoted to the pay grade of E-5 on 13 November 1976.

6.  The applicant was honorably discharged on 10 March 1977.  The DD Form 214 that he was furnished at the time shows that he had completed 9 years, 2 months, and 8 days of total service for pay purposes.  His DD Form 214 also shows that his service this period was extended at the request and for the convenience of the Government.

7.  On 23 March 1977, the applicant enlisted in the USAR for 3 years, in the pay grade of E-5.  He was promoted to the pay grade of E-6 on 22 August 1977. 

8.  The applicant reenlisted in the USAR for 3 years on 10 February1980 and he was promoted to the pay grade of E-7 on 15 April 1981.  On 12 December 1982, he reenlisted in the USAR for 3 year.  His records indicate that he had 3 months and 5 days of active service subsequent to his promotion to the pay grade E-7.

9.  Orders 164-3 was published on 20 September 1983 reducing the applicant to the pay grade of E-6, under the provisions of Army Regulation 140-158 (Enlisted Personnel Classification, Promotion, and Reduction), paragraph 3-38j, effective 26 September 1983.

10.  On 26 September 1983, Orders R-09-003501 was published ordering the applicant to active duty in a, AGR status in the pay grade of E-6, effective 30 September 1983.  Through a series of reenlistments and extensions in the USAR, the applicant continued to serve in an AGR status in the pay grade of E-6. 

11.  Orders C-09-701243 was published on 8 September 1997, releasing the applicant from active duty effective 31 July 1998 and placing him on the Retired List effective 1 August 1998 in the pay grade of E-6.

12.  Accordingly, on 31 July 1998, the applicant was retired under the provisions of Army Regulation 635-200, chapter 12, due to obtaining sufficient service for retirement, and he was placed on the Retired List in the pay grade of E-6 on 1 August 1998.  The DD Form 214 that he was furnished shows he was transferred to the USAR Control Group (Retired) and that he had a total of 30 years, 6 months, and 15 days of total active and inactive service.

13.  Title 10, U.S. Code, section 3963, as amended by the National Defense Authorization Act for FY 1997, provides, in effect, that a full-time Reserve or National Guard member 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, as determined by the Secretary of the Army upon completion of 30 years of service.  This service may consist of combined active service and service in the USAR Control Group (Retired) and the Army Grade Determination 
Board is the agency that reviews the records and/or applications for advancement on the Retired list in behalf of the Secretary, for those who have attained 30 years of service.  It also provides that Reserve or full-time National Guard members who at the time of retirement are serving on active duty in a grade lower than the highest grade held by the member on active duty and were 
previously administratively reduced in grade not as a result of the member’s own misconduct, will be retired in the highest grade served on active duty at the time of retirement, provided that they retired after 30 September 1996.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was promoted to the pay grade of E-7, while he was a member of the USAR and prior to accepting a position in the AGR.  He subsequently accepted a voluntary administrative reduction in grade (to pay grade E-6) to accept the vacancy in the AGR Program.  

2.  In accordance with the applicable law, Reserve or full-time National Guard members who at the time of retirement are serving on active duty in a grade lower than the highest grade held by the member on active duty and were previously administratively reduced in grade, not as a result of the member’s own misconduct, will be retired in the highest grade served on active duty at the time of retirement, provided that they retired after 30 September 1996.

3.  While the applicant's records show that he was promoted to the rank of sergeant first class (E-7) while he was a member of the USAR (not in an active status), his records also show that he had 3 months and 5 days of service as a member of the USAR (in an active status) subsequent to his promotion to the pay grade of E-7.

4.  The available records indicate that at the time of the applicant's retirement he should have been placed on the Retired List in the pay grade of E-7 on 1 August 1998.  Additionally, he should have been receiving retired pay in the pay grade of E-7.  Therefore, his records should be corrected to reflect the appropriate information and he should be paid accordingly.

5.  In view of the foregoing, it would now be in the interest of justice to correct the applicant's records as recommended below.






BOARD VOTE:

__XXX __  __XXX__  __XXX__   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 that he was placed on the Retired List on 1 August 1998 in the rank and pay grade of sergeant first class/E-7; and

	b.  paying him all back pay and allowances that are due as a result of this correction.



      ___        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)                                         AR20080009700



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ABCMR Record of Proceedings (cont)                                         AR20080009700



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