Search Decisions

Decision Text

ARMY | BCMR | CY2008 | 20080017708
Original file (20080017708.txt) Auto-classification: Approved

		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 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 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



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080017708



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

Similar Decisions

  • ARMY | BCMR | CY2015 | 20150001637

    Original file (20150001637.txt) Auto-classification: Approved

    The applicant states, in effect: * he held the rank of SSG for at least 3 years * his military records were lost and as such he was unable to either prove or disprove his contention * a discharge appeals board for the Michigan Army National Guard (MIARNG), convened on 9 May 2014, has since affirmed he was administratively reduced from SSG to SGT due to a change in the unit's Modified Table of Organization and Equipment (MTOE); the board recommended his rank be restored to SSG * on 18 June...

  • ARMY | BCMR | CY2005 | 20050005709C070206

    Original file (20050005709C070206.doc) Auto-classification: Approved

    The applicant provides the following documents in support of his application: Self-Authored Statement; Transfer to Inactive Army National Guard (ARNG) Orders; SSG/E-6 Promotion Orders; Administrative Reduction Orders; and Record of Proceedings Under Article 15, UCMJ (DA Form 2627). The evidence of record in this case confirms the applicant was promoted to SSG/E-6 on 28 May 1983, and that he satisfactorily served in that rank until being administrative reduced to SGT/E-5 on 5 May 1989, in...

  • ARMY | BCMR | CY2011 | 20110019220

    Original file (20110019220.txt) Auto-classification: Approved

    Orders P04-804826, issued by the U.S. Army Human Resources Command, St. Louis, MO, dated 8 April 2008, placed him on the AUS Retired list as a SPC/E-4 effective 17 January 2008, the date he reached 60 years of age. Army Regulation 135-180 (Qualifying Service for Retired Pay Nonregular Service) states a person granted retired pay will receive such pay in the highest grade (temporary or permanent) satisfactorily held during his or her entire period of service. The available records do not...

  • ARMY | BCMR | CY2001 | 2001066044C070421

    Original file (2001066044C070421.rtf) Auto-classification: Denied

    He submits copies of: OMD Pamphlet 600-5, AFTM Program, chapter 2 and 6; Position Description, AFTM Unit Maintenance NCO; State of Oklahoma Military Department Orders 114-13, dated 14 June 1982; and State of Oklahoma Military Department Orders 15-18, dated 23 January 1984, to substantiate his case. The applicant had requested answers from the Board to include; non-review of pertinent evidence/documentation in the orders submitted. It states that Army National Guard (ARNG) AFTM personnel...

  • ARMY | BCMR | CY2007 | 20070001266C071029

    Original file (20070001266C071029.doc) Auto-classification: Approved

    The applicant's Military Personnel Records Jacket (MPRJ) contains a request for voluntary reduction made by the applicant on 25 September 1980. The orders further indicated that the authority for reduction was paragraph 6-35, National Guard Regulation 600-200, and that the reason for reduction was the individual request of the applicant. The evidence of record in this case confirms the applicant was promoted to SSG/E-6 on 4 June 1974, and that he satisfactorily served in that rank until...

  • ARMY | BCMR | CY2007 | 20070017218

    Original file (20070017218.TXT) Auto-classification: Approved

    c. U.S. Army Reserve Personnel Center, St. Louis, Missouri, Orders C-06-02539, dated 20 June 1986 (Relief from the USAR Control Group-Reinforcement). He is currently a retired USAR SGT/E-5. In light of the applicant’s over four years of satisfactory service as a SSG/E-6, and in light of the fact that he was not reduced for misconduct or inefficiency, he should have been placed on the Retired List in that rank and pay grade at the time of his retirement.

  • ARMY | BCMR | CY2014 | 20140010544

    Original file (20140010544.txt) Auto-classification: Denied

    Counsel requests reconsideration of the applicant's earlier request for: * promotion to lieutenant colonel (LTC) in the U.S. Army Reserve (USAR), “effective 16 September 2011” with entitlement to back pay and allowances * placement on the Retired List in the rank of LTC vice major (MAJ) on his 60th birthday * correction of the applicant's mobilization DD Form 214 (Certificate of Release or Discharge from Active Duty), ending on 30 April 1991, to show his rank as LTC 2. Had he not requested...

  • ARMY | BCMR | CY2010 | 20100021115

    Original file (20100021115.txt) Auto-classification: Approved

    IN THE CASE OF: BOARD DATE: 11 August 2011 DOCKET NUMBER: AR20100021115 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. He was transferred from the USAR to the North Carolina ARNG (NCARNG) in the rank of CPT and executed an oath of office on 28 June 2007. This memorandum states that ARNG officers recommended for promotion to the grades of CPT through lieutenant colonel mobilized under Title 10, U.S. Code , and who are on an approved mandatory selection board promotion list who reach their...

  • ARMY | BCMR | CY2014 | 20140017986

    Original file (20140017986.txt) Auto-classification: Denied

    As new evidence, the applicant provides a statement of support, dated 30 September 2014, wherein (Retired) Brigadier General (BG) RLT, stated, in part: a. There is no evidence and the applicant hasn't provided any evidence that shows these orders were issued in error. There is no evidence and the applicant hasn't provided any evidence that shows these orders were issued in error.

  • ARMY | BCMR | CY2014 | 20140004089

    Original file (20140004089.txt) Auto-classification: Approved

    The applicant states: * he held the rank/grade of SFC/E-7 when he was discharged from active duty * he enlisted in the Mississippi Army National Guard (MSARNG) approximately 2 years later in the rank/grade of sergeant (SGT)/E-5 because there were no E-7 positions available * he was promoted to the rank/grade of SSG/E-6 in the MSARNG * he was always told he would retire in the highest rank successfully held * he retired on 24 December 2013 and his retirement orders show his rank/grade as...