IN THE CASE OF:	  

		BOARD DATE:	  9 June 2009

		DOCKET NUMBER:  AR20080018696 


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 his military records be corrected to show that he was placed on the Retired List in pay grade E-8.

2.  The applicant states that when the National Guard Bureau (NGB) approved his request to retire, the NGB only had the choice to approve or disapprove his request. 

3.  The applicant provides a case which was approved by the Board on 14 August 2001.  In that case an Active Guard and Reserve master sergeant (MSG) who was denied a waiver of the Active Duty Service Obligation (ADSO) he incurred as a result of his promotion was reduced to the rank of sergeant first class (SFC) when he was placed on the Retired List.  The Board granted his request to correct his records to show he was placed on the Retired List in the rank of MSG.

CONSIDERATION OF EVIDENCE:

1.  After having prior inactive and active service, the applicant enlisted in the Army National Guard on 10 August 2000.  He was ordered to active duty in an Active Guard Reserve (AGR) status on 7 November 2000.

2.  He was promoted to SFC effective 6 July 2004.



3.  Departments of the Army and the Air Force, National Guard Bureau Orders 186-3, dated 5 July 2007, promoted the applicant to MSG in MOS 92Y5PG3OO effective 1 July 2007 with a DOR of 1 July 2007.  

4.  On 30 April 2008, the applicant was transferred to the U.S. Army Reserve (USAR) Control Group (Retired) due to him having sufficient service for retirement.  His DD Form 214 shows his rank as MSG and his pay grade as E08.

5.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions), effective 1 April 2008, chapter 7 (Enlisted Promotion and Reduction of Army National Guard Personnel), paragraph 7–8, states:

   a.  The following service remaining obligations, from effective date of promotion, are required for promotion to sergeant (SGT) through sergeant major (SGM):

   (1) To SGT and staff sergeant (SSG), 1 year.
   
   (2) To SFC through SGM, 2 years.
   
   b.  Service will be obligated from the effective date of promotion and Soldiers must extend or reenlist in order to accept the promotion.  Soldiers under involuntary extension will be contacted and afforded the opportunity to extend to accept the promotion.  However, Soldiers are exempt from this requirement if they are—
   
   (1) Eligible through prior service for higher pay grade at time of retirement.
   
      (2) Able to serve at least 6 months in the grade but will be involuntarily separated due to medical disqualification, action by a nonpunitive board, or will reach their maximum years of service by grade (retention control point, or RCP), or maximum age.
      
   c.  Individuals who accept promotions will fulfill their service remaining obligations in the ARNG.  Soldiers who voluntarily transfer to a regular component, the U. S. Army Reserve (USAR), the Individual Ready Reserve (IRR), the Standby Reserve, the Inactive National Guard (ING), or the Retired Reserve or who voluntarily discharge to civilian life will be separated at the lower grade.  Those who do not meet their service remaining obligation will be administratively reduced without board action or appeal on the date separated 
   
unless granted an exception to policy by the Chief, NGB (NGB–ARH–S) for the good of the service.  When a Soldier incurs more than one obligation, such as one for training and one for promotion, set the later date, do not combine them.

   d.  If a Soldier submits a request for voluntary retirement before fulfilling his/her service remaining obligation in the ARNG, the NGB can deny the request, or accept the request and waive the service remaining requirement if waiver is in the best interest of the Army or when substantial hardship would result.
   
   e.  Soldiers eligible for promotion who would lose Selected Reserve Incentive Program (SRIP) entitlements upon immediate extension or reenlistment, may defer extension or reenlistment and accept a promotion.  These Soldiers may
wait until they are within 12 months of their scheduled ETS.  Soldiers in this category who fail to extend or reenlist, as a condition of the promotion, will be reduced without board action or appeal per paragraph 10–21.

6.  In a letter to the Army Grade Determination Review Board, the applicant stated that it is his understanding that applicable Army regulations specify that while a request for retirement can be approved or denied by the appropriate authority when a service remaining obligation exists, the approval of the request waives the service obligation.

DISCUSSION AND CONCLUSIONS:

1.  The issue at hand in this case is the interpretation of Army Regulation 
600-8-19, effective 1 April 2008, paragraph 7–8, Service remaining obligation.

2.  This paragraph states in pertinent part that Soldiers who voluntarily transfer to a regular component, the USAR, the IRR, the Standby Reserve, the ING, or the Retired Reserve or who voluntarily discharge to civilian life will be separated at the lower grade.  Those who do not meet their service remaining obligation will be administratively reduced without board action or appeal on the date separated unless granted an exception to policy by the CNGB (NGB–ARH–S) for the good of the service.

3.  The applicant was released from active duty and transferred to the Retired Reserve.  As such, he was required to be reduced to pay grade E-7 when he was transferred.




4.  The portion of this paragraph which the applicant is basing his request is, "If a Soldier submits a request for voluntary retirement before fulfilling his/her service remaining obligation in the ARNG, the NGB can deny the request, or accept the request and waive the service remaining requirement if waiver is in the best interest of the Army or when substantial hardship would result."  This appears to be giving the ARNG the authority to disapprove a request for retirement or to waive the service remaining requirement.  It does not specify that the ARNG must waive the service remaining requirement if they approve a request for retirement.

5.  To the contrary, this portion of the regulation specifies that the service remaining requirement of a promotion may be waived "if waiver is in the best interest of the Army or when substantial hardship would result."

6.  There is no evidence or indication that the applicant was experiencing any hardship when he was on active duty.  His retirement was strictly voluntary.

7.  There is no evidence or indication that the NGB believed that waiving his ADSO would have been in the best interest in the Army.

8.  The fact that the applicant was transferred to the Retired Reserve in the lower grade is indicative that his ADSO was not waived based on hardship or being in the best interest of the Army.  

9.  To grant the applicant's request would be giving him a benefit not afforded to other Guardsmen.

10.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ___X____  ___X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _   _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)                                         AR20080018696





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080018696



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1