IN THE CASE OF:	  

		BOARD DATE:	        17 SEPTEMBER 2008

		DOCKET NUMBER:  AR20080011310 


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 he be reinstated to or retired in the rank of master sergeant (E-8).

2.  The applicant states that he went on an Active Guard Reserve (AGR) tour of duty in the National Guard as a sergeant first class (E-7) and was voluntarily reduced in rank.  He states that according to Army regulation, he should have had his rank restored to master sergeant after his discharge from the AGR.  He states that he held the rank of master sergeant for 3 years and 9 months prior to going on active duty in the AGR.

3.  The applicant provides in support of his application, a copy of Orders 172-4 dated 7 September 1988; a copy of an undated self-authored letter to the Defense Finance and Accounting Service, pertaining his rank; a copy of his Report of Separation and Record of Service (NGB Form 22); a copy of portions of Army Regulation 140-158; a copy of Orders 163-14 dated 22 August 1985; a copy of a reference to his request for information pertaining to his military records from the State of Nebraska, Military Department, Office of the Adjutant General; a copy of a self-authored Letter of Verification of Enlistment in the Army National Guard, dated 22 April 2008; a copy of Orders 231-1136 dated 27 November 1981; two copies of Orders 068-034 dated 9 March 1981; a copy of his Enlisted Evaluation Report (DA Form 2166-6) for the period December 1981 through 




November 1982; a copy of his a portion of his Personnel Qualification Record (DA Form 2-1); a copy of Orders 068-035 dated 9 March 1981; and a copy of a Request for Discharge or Clearance from Reserve Component (DD Form 388).

CONSIDERATION OF EVIDENCE:

1.  On 22 October 1968, the applicant enlisted in the United States Army Reserve (USAR) in the pay grade of E-1.

2.  The applicant’s DA Form 2-1 shows that he was promoted to the pay grade of E-2 on 22 February 1969; he was promoted to the pay grade of E-3 on 2 December 1969; he was promoted to the pay grade of E-4 on 6 December 1970; he was promoted to the pay grade of E-5 on 11 November 1971; he was promoted to the pay grade of E-6 on 6 February 1973; and he was promoted to the pay grade of E-7 on 22 June 1976.

3.  On 22 October 1978, the applicant reenlisted in the USAR in the pay grade of E-7.  He was promoted to the pay grade of E-8 on 9 March 1981.

4.  The applicant’s DA Form 2166-6 for the period December 1981 through November 1982 shows that the applicant was serving as a member of the USAR in the pay grade of E-8.

5.  On 16 November 1984, the applicant enlisted in the Nebraska Army National Guard (NEARNG) in the pay grade of E-7.

6.  Orders 163-14, published by the State of Nebraska, Military Department, Office of The Adjutant General, dated 22 August 1985, ordered the applicant to full time duty in AGR status, effective 1 December 1985 through 30 November 1988, in the grade of E-7.

7.  On September 1988, Orders 172-4 published by the same office, ordered the applicant to full time National Guard duty in AGR status, effective 1 December 1988 through 30 November 1991, in the pay grade of E-7.

8.  On 8 May 1991, the applicant was released from active status and he was transferred to the NEARNG in the pay grade of E-7.

9.  On 1 June 1991, he was released from the NEARNG and he was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement), in the pay grade of E-7.


10.  The applicant was released from the USAR Control Group (Reinforcement) on 25 May 1993, and he was transferred to the 5094th United States Army Reserve Forces School in Omaha, Nebraska.

11.  Orders P04-804793, published by U.S. Army Human Resources Command, St. Louis, MO on 8 April 2008, retired the applicant and placed him on the Retired Listed, effective 11 May 2008, in the pay grade of E-7.

12.  National Guard Regulation 600-200 (Enlisted Management) provides the policy for the management of enlisted Soldiers of the ARNG.  Paragraph 6-44h of the regulation in effect at the time stated, in pertinent part, that a Soldier could accept a voluntary reduction in order to qualify for a position vacancy.  

13.  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 evidence of record in this case confirms the applicant was promoted to the pay grade of E-8 on 9 March 1981 and that he satisfactorily served in that rank until being administratively reduced (voluntarily) to the pay grade of E-7 on 16 November 1984, in order to accept a position in the AGR.  

2.  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.  The evidence of record in this case confirms the applicant’s service in the highest grade he held of (pay grade E-8) was satisfactory.  

3.  In view of the facts of this case, the applicant’s retirement orders should be corrected to show he was placed on the retired list in the retired grade of master sergeant/E-8 and authorized to receive non-regular retired pay in that pay grade, effective 11 May 2008, the date he turned age 60 and became eligible to receive retired pay.  Further, it would be appropriate to provide him all back retired pay due as a result.

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 correcting his retirement orders to show he was placed on the retired list in the retired grade of master sergeant, pay grade E-8, effective 11 May 2008, the date he reached age 60 and began receiving retired pay; and by providing him all back retired pay 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)                                         AR20080011310



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ABCMR Record of Proceedings (cont)                                         AR20080011310



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