IN THE CASE OF:
BOARD DATE: 19 March 2009
DOCKET NUMBER: AR20080017708
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 he be advanced on the retired list to the rank/grade of sergeant (SGT)/E-5, the highest grade he held.
2. The applicant states, in effect, that he was administratively reduced from E-5 to specialist four (SP4)/E-4 to fill a vacant position and he was assured that upon retirement, the grade of E-5 would be reinstated.
3. The applicant provides a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge); promotion orders, dated 5 October 1980; and a DA Form 2496 (Disposition Form), subject: (Recommendation for Administrative Reduction of EM [Enlisted Member]), dated 17 April 1986 in support of this 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 applicants 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 applicants 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 born on 21 February 1948. He enlisted in the Regular Army on 26 April 1968 and was released from active duty on 23 April 1971. He was then transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his remaining Reserve obligation. He reenlisted in the USAR on 1 February 1975. The applicant continued to serve in the USAR through a series of reenlistments through 1 April 1995.
3. Headquarters, 467th Engineer Battalion (Combat) (Corps), Memphis, TN Orders 9-3, dated 5 October 1980, promoted the applicant to the rank/grade of specialist five (SP5)/E-5 effective 4 October 1980.
4. On 17 April 1986, the applicant's immediate commander recommended he be reduced one pay grade in order to fill an existing unit vacancy in the lower grade. The request was based on a change to the unit's modified table of organization and equipment (MTOE).
5. On 26 April 1986, the applicant officially requested to be reduced from E-5 to E-4. He acknowledged that his request for reduction was made without prejudice due to the need to be assigned to an existing vacancy in a lower grade that was precipitated by a change in the MTOE on 17 March 1985.
6. Headquarters, 467th Engineer Battalion (Combat) (Corps) Orders Number
1-2, dated 26 April 1986, reduced the applicant to the grade of E-4 effective
17 April 1986.
7. Army Regulation 135-180 (Qualifying Service for Retired Pay Nonregular Service) states, in pertinent part, that a person granted retired pay will receive such pay in the highest grade (temporary or permanent) satisfactorily held by him or her during his or her entire period of service. Service in the highest grade will not be deemed satisfactory if it is determined that any of the following factors exist: (a) revision to a lower grade was expressly for prejudice or cause, due to misconduct, or punishment pursuant to Article 15, Uniform Code of Military Justice, or court-martial; or (b) there is information in the Soldier's service record to indicate clearly that the highest grade was not served satisfactorily.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that he should be advanced on the retired list to the grade of E-5 has been carefully reviewed and found to have merit.
2. Evidence of record shows the applicant was promoted to E-5 on 4 October 1980 and served in that grade until he was voluntarily reduced in grade to E-4 in 1986 due to accept a unit vacancy. There is no evidence that shows his reduction was based on misconduct or that his service in the grade of E-5 was unsatisfactory. Therefore, his records should be corrected to show that he was placed on the retired list as a SGT/E-5 effective 21 February 2008.
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:
a. amending his records to show he was placed on the retired list as a SGT/E-5 effective 21 February 2008 and
b. directing the Defense Finance and Accounting Service (DFAS) audit his records and pay any monies due, if any, 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) AR20080017708
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