IN THE CASE OF:	  

		BOARD DATE:	       22 January 2009

		DOCKET NUMBER:  AR20080014840 


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, correction of his military records to show that his highest rank held satisfactorily was staff sergeant, pay grade E-6, and that his retired pay be adjusted accordingly.

2.  The applicant states, in effect, that he is currently receiving retired pay as a sergeant, pay grade E-5.  He held the rank of staff sergeant, pay grade E-6 and wants his retired pay adjusted to reflect this status.

3.  The applicant provides, in support of his application, copies of two NGB Forms 22 (Reports of Separation and Record of Service) dated 6 August 1968 and 1 October 1994.

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.  On 7 August 1960, the applicant enlisted in the Michigan Army National Guard.  He served as a supply sergeant with the 46th Engineer Group in Flint Michigan.  

3.  On 7 April 1966, the applicant was promoted to staff sergeant, pay grade E-6.

4.  On 6 August 1968, the applicant was discharged in the rank of staff sergeant, pay grade E-6, with an honorable characterization of service at his ETS (expiration term of service).  He had completed 8 years of creditable service in an active Reserve status.

5.  The applicant's Statement of Service for the period from 7 August 1960 to 
6 August 1968 shows that he had attained a total of 749 points creditable towards retirement and that every year of this period was identified as a satisfactory year of Federal service.

6.  On 28 September 1982, the applicant enlisted in the Michigan Army National Guard.  The applicant's Enlistment/Reenlistment Document (DD Form 4) shows that he enlisted in pay grade E-5.

7.  Orders 46-1, Michigan Army National Guard, dated 22 July 1988, reduced the applicant from sergeant, pay grade E-5 to specialist four, pay grade E-4.  This action was voluntary and without prejudice.

8.  Orders 20-1, Michigan Army National Guard, dated 21 April 1989, promoted the applicant to the rank of sergeant, pay grade E-5.

9.  On 1 October 1994, the applicant was discharged from the Michigan Army National Guard, with an honorable characterization of service, and transferred to the United States Army Reserve Control Group (Retired Reserve) in the rank of sergeant, pay grade E-5.  He had completed a total of 20 years and 8 days of creditable service.

10.  Records show that the applicant was born on 5 December 1942.  The applicant attained 60 years of age on 5 December 2002 and eligibility for retired pay.

11.  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 contends that his records should be corrected to show his highest pay grade held as E-6.  He further contends that he is receiving retired pay as an E-5 and that it should be adjusted to reflect his highest pay grade 
of E-6.

2.  The evidence of record in this case confirms the applicant was promoted to staff sergeant, pay grade E-6 on 7 April 1966, and that he satisfactorily served in that rank until his honorable discharge at his ETS on 6 August 1968.

3.  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 (staff sergeant, pay grade E-6) was satisfactory.  

4.  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 on pay grade E-6 on 5 December 2002, 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:

____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 he is authorized to receive non-regular retired pay based on pay grade E-6, effective 5 December 2002.  Furthermore, it would be appropriate to provide him all back pay due as a result of this correction. 






      _______ _  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)                                         AR20080014840



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ABCMR Record of Proceedings (cont)                                         AR20080014840



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