IN THE CASE OF:	  

		BOARD DATE:	  2 October 2008

		DOCKET NUMBER:  AR20080010088 


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 his retired grade be changed from sergeant/E-5 (SGT/E-5) to staff sergeant/E-6 (SSG/E-6).  

2.  The applicant states, in effect, that he was a SSG/E-6 from 17 October 1982 through 15 December 1994, while serving in the United States Army Reserve (USAR), he and should have been retired in that grade.  

3.  The applicant provides a leave and earnings statement (LES)-July 1986, award orders, retirement eligibility notification, monthly cost and annuity statement, separation document (NGB Form 22), and retired pay application 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's record shows that he served on active duty from 23 November 1965 through 7 September 1967, at which time he was honorably released from active duty and transferred to the United States Army Reserve (USAR) to complete his military service obligation.  He was honorably discharged from the USAR on 22 November 1971.

3.  On 25 August 1976, the applicant enlisted in the USAR and reentered military service, in the grade of private first class/E-3 (PFC).  Item 18 (Appointment and Reductions) shows that he was promoted to SSG/E-6 on 17 October 1982.  Item 35 (Record of Assignments) shows he served as a SSG/E-6 in Troop Program Units of Ready Reserve from October 1982 through 15 December 1994, the date of his honorable discharge from the USAR.

4.  On 19 December 1997, the applicant enlisted in the Utah Army National Guard (ARNG), in the grade of SGT/E-5.

5.  On 7 December 1998, the Director of Personnel and Community Activities of the Utah ARNG issued a Notification of Eligibility for Retired Pay at Age 60 (20 Year Letter) pertaining to the applicant, which notified him that he had completed the required years of service and would be eligible to receive retired pay upon application at age 60.  

6.  On 10 January 1999, the applicant completed a Survivor Benefit Plan (SBP) Election Certificate (DD Form 1883), which listed his retired grade as SSG/E-6 in Item 4 (Rank or Grade).  

7.  On 8 April 1999, Office of The Adjutant General, Utah ARNG Orders 098-104, directed the applicant's honorable discharge from the ARNG and transfer to the Retired Reserve, effective 18 December 1998.  

8.  On 6 June 2006, United States Army Human Resources Command, St. Louis, Missouri, published Orders P06-68055, which directed the applicant's placement on the Retired List, in the retired grade of SGT/E-5, effective 23 June 2006.  

9.  During the processing of this case, a member of the Board’s staff contacted the Defense Finance and Accounting Service (DFAS) and confirmed the applicant is receiving retired pay based on a retired rank of SGT/E-5.


10.  Title 10 of the United States Code, section 12731 provides the legal authority for age and service (non-regular) retirements.  Section 1406 provides the legal authority for establishing the retired pay base for members who first became members before September 8, 1980.  Paragraph (b)(2) contains guidance on non-regular service retirement.  It states, in pertinent part, that in the case of a person who is entitled to retired pay under section 12731 of this title, the retired pay base is the monthly basic pay, determined at the rates applicable on the date when retired pay is granted, of the highest grade held satisfactorily by the person at any time in the Armed Forces.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should be receiving retired pay as a SSG/E-6 was carefully considered and found to have merit.  By law, in connection with a non-regular retirement, enlisted members are entitled to receive retired pay in the highest grade held satisfactorily at any time in the Armed Forces.

2.  The evidence of record confirms the applicant was promoted to SSG/E-6 on 17 October 1982, and that he satisfactorily served in that grade as a member of the Ready Reserve until being honorably discharged from the USAR on 
15 December 1994

3.  In view of the facts of this case, the applicant’s record should be corrected to show he was authorized to receive non-regular retired pay based in the rank of SSG/E-6 on 23 June 2006, the date he turned age 60 and became eligible to receive retired pay, which is also the date he was placed on the Retired List.  In addition, it would be appropriate to provide him all back retired pay due as a result.  

BOARD VOTE:

___x____  ___x____  ___x____  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 showing his retired grade was established as Staff Sergeant/E-6 and he was authorized to receive retired pay in that grade as of 23 June 2006, the date he reached age 60 and began receiving retired pay; and by providing him all back retired pay due as a result.  




      _______ 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)                                         AR20080010088



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ABCMR Record of Proceedings (cont)                                         AR20080010088


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