IN THE CASE OF:	  

		BOARD DATE:	      4 JUNE 2009

		DOCKET NUMBER:  AR20080019714 


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 records to show he retired in the grade of Sergeant Major (SGM)/pay grade E-9.

2.  The applicant states, in effect, the highest grade he successfully held while on active duty was SGM/E-9, he held this grade for a period of about two years, and should have been retired in that grade.  He also states that he found out about this provision of the law when he requested to be advanced on the retired list at the 30-year point.

3.  The applicant provides a self-authored letter, dated 2 December 2008; State of New Mexico, Department of Military Affairs, Military Division, Santa Fe, New Mexico (NM), Orders 124-004, dated 3 May 2000; nine DFAS Forms 702 (Defense Finance and Accounting Service (DFAS) Military Leave and Earnings Statements (LES)) for the months of March, April, May, June, and July 2001 and January, February, March, and May 2002; DA Form 2166-8 (NCO Evaluation Report) for the period August 2001 through March 2002; State of New Mexico, Department of Military Affairs, Military Division, Santa Fe, NM, Orders 102-042, dated 12 April 2002; State of New Mexico, Department of Military Affairs, Military Division, Santa Fe, NM, Orders 116-116, dated 26 April 2002; DD Form 2656 (Data for Payment of Retired Pay), dated 3 June 2002; The Adjutant General, New Mexico Army National Guard (NMARNG), 2-star letter, dated 29 July 2002; The Adjutant General of New Mexico, Certificate of Retirement, NM Army National Guard (NMARNG), undated; Departments of the Army and the Air Force, National Guard Bureau (NGB), Arlington, Virginia (VA), memorandum, undated, subject:  Request for Exception to Policy; NGB Form 22 (Report of Separation and Record of Service) with an effective date of 31 July 2002; DD Form 214 (Certificate of Release or Discharge from Active Duty) with an effective date of 31 July 2002; and Army Review Boards Agency, Arlington, VA, memorandum, dated 16 January 2009.

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's military personnel records show he enlisted and entered active duty in the Regular Army for a period of 3 years on 27 October 1965.  The applicant’s records show his date of birth is __ January 1947.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty (MOS) 62G (Quarry Machine Operator).  The applicant was honorably released from active duty on 25 October 1968 and, at the time, he had completed 2 years, 11 months, and 29 days of total active service.  The applicant was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) on 26 October 1968 to complete his remaining military service obligation and he was honorably discharged from the USAR on 26 October 1971.

3.  The applicant’s military personnel records show he had a non-military civilian break in service from 27 October 1971 through 30 April 1982.

4.  The applicant enlisted in the Army National Guard of the United States (ARNGUS) and NMARNG on 1 May 1982.  He entered active duty in an Active Guard Reserve (AGR) status on 25 July 1983.

5.  The applicant’s military personnel records contain a DA Form 2-1 (Personnel Qualification Record).  Item 18 (Appointments and Reductions) shows, in pertinent part, the applicant was promoted to the grade of Master Sergeant (MSG)/pay grade E-8 with a date of rank (DOR) of 1 December 1996; he was then appointed to the rank of SGM/E-9 with a DOR of 15 December 2000; and subsequently appointed to the rank of MSG/E-8 with a DOR of 1 December 1996, effective 15 May 2002.

6.  The applicant’s military personnel records contain a copy of State of New Mexico, Department of Military Affairs, Santa Fe, NM, memorandum, dated
29 February 2000, subject:  Notification of Eligibility for Retired Pay at Age 60.  This document shows the applicant was notified he had completed the required years of service and was eligible for retired pay upon application at age 60 in accordance with provisions of Title 10, USC, Chapter 1223.

7.  The applicant’s military personnel records contain a copy of a memorandum, dated 14 November 2001, subject:   Request for Exception to Policy - Time in Grade Waiver Without Penalty [Name, Social Security Number], SGM.  This document shows the applicant requested a waiver for time in grade (TIG) in accordance with National Guard Regulation 600-200, paragraph 11-10c, based on his requested retirement date of 1 August 2002.  The applicant added that he would be graduating from the U.S. Army Sergeants Major (non-resident) Course, Fort Bliss, Texas in June 2002; however he would not have a service obligation per Army Regulation 350-1, paragraph 5-23.

	a.  On 19 November 2001, the Military Personnel Officer, Department of Military Affairs, Santa Fe, NM, recommended approval of the applicant’s request for a 7-month waiver of his SGM/E-9 time in service requirement and request for retirement in the grade of SGM/E-9 effective 1 August 2002. 

	b.  On an unspecified date, the Chief, Human Resources Policy and Programs Division, NGB, Arlington, VA, approved the applicant’s request for exception to policy to retire at his current grade (i.e., SGM/E-9).  (This document has a facsimile date-time stamp of 10 January 2002, 1247 hours, from the NGB, Army Reserve Personnel (ARP), Resource Management office.)

8.  The applicant’s military personnel records contain a DA Form 638 (Recommendation for Award) that shows Headquarters, Fifth United States Army, Fort Sam Houston, Texas, Permanent Orders Number 311-1, dated
7 November 2002, awarded the applicant the Legion of Merit for meritorious service from 1 August 1992 to 31 July 2002.  Item 5 (Rank) contains the entry “SGM” and this document also shows, in pertinent part, the applicant was consistently referred to in the rank of SGM. 

9.  The applicant’s military personnel records contain a DA 2339 (Application for Voluntary Retirement), dated 24 April 2002.  Item 5 (Current Grade, Pay Grade, (Effective Date of Promotion), and MOS) contains the entry “MSG E8 (1996/12/01) 14Z5O [Air Defense Artillery Senior Sergeant].”  Item 6 (Highest Grade Served on Active Duty and Branch of Service) contains the entry “E8 U.S. Army.”

10.  The applicant’s military personnel records contain a Service Computation for Retirement (Automated), computed on 24 April 2002.  In pertinent part, Item 29 (Highest AD [Active Duty] Grade Held) contains the entry “E8.”

11.  The applicant’s military personnel records contain an NGB Form 22 that shows he enlisted in the ARNGUS and NMARNG on 1 May 1982, was honorably discharged on 31 July 2002, and transferred to the USAR Retired Reserve (under age 60).  At the time he had completed 20 years, 3 months, and 1 day of net service this period; 3 years of prior Reserve Component service; 3 years of prior active Federal service; 26 years, 3 months, and 1 day of total service for pay; and 23 years, 2 months, and 29 days of total service for retired pay.  Item
5a (Rank) contains the entry “MSG”; Item 5b (Pay Grade) contains the entry “E8”; and Item 6 (DOR) contains the entry 96 12 01” (i.e., 1 December 1996).

12.  The applicant’s military personnel records contain a DD Form 214 that shows he entered active duty this period on 25 July 1983; honorably retired from active duty on 31 July 2002, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), chapter 12 (Retirements), based on sufficient service for retirement; and was transferred to the USAR Control Group (Retired) effective 1 August 2002.  At the time he had completed 19 years and 6 days of net active service this period; 2 years, 11 months, and 29 days of total prior active service; and 4 years, 2 months, and 25 days of total prior inactive service.  Item 4a (Grade, Rate, or Rank) contains the entry “MSG”; Item 4b (Pay Grade) contains the entry “E8”; and Item 12 (Record of Service), block h (Effective Date of Pay Grade) contains the entry “1996 12 01” (i.e., 1 December 1996).  

13.  The applicant’s military personnel records contain an NGB Form 23A (ARNG Current Annual Statement), prepared on 8 October 2002.  This document shows the applicant completed 23 years, 2 months, and 29 days of creditable service for retired pay and, in pertinent part, contains the entry “Highest Grade Held:  E09.”

14.  The applicant’s records are absent orders or any other official instrument that authorized his reappointment to the grade of MSG/E-8 with a DOR of
1 December 1996, effective 15 May 2002.  Moreover, there is no evidence that the applicant was reduced in grade as a result of misconduct.

15.  In support of his application, the applicant provides the following documents:

     a.  State of New Mexico, Department of Military Affairs, Military Division, Santa Fe, NM, Orders 124-004, dated 3 May 2000, that show, in pertinent part, the applicant was assigned to Headquarters and Headquarters Battery, 111th Air Defense Artillery, Albuquerque, NM and assigned to the position of Operations Sergeant (MOS 14Z5O), paragraph 104, line 05, effective 15 May 2000, to perform duties as Senior Operations NCO.  (The applicant’s rank in the Standard Name Line of these orders is shown as Sergeant First Class (SFC)).

   b.  Nine DFAS Forms 702 for the months of March, April, May, June, and July 2001 and January, February, March, and May 2002.  All of these documents show, in pertinent part, the applicant’s grade was “E9.”
   
   c.  DA Form 2166-8 for the period August 2001 through March 2002 that shows, in pertinent part, in Part I (Administrative Date), block c (Rank) the entry “SGM” and in block d (DOR) the entry “20001215: (i.e., 15 December 2000).

	d.  State of New Mexico, Department of Military Affairs, Military Division, Santa Fe, NM, Orders 102-042, dated 12 April 2002 and State of New Mexico, Headquarters, Department of Military Affairs, Military Division, Santa Fe, NM, Orders 116-116, dated 26 April 2002, that show, in pertinent part, the applicant proceeded on temporary duty on 14 May 2002 for a pre-separation briefing at Fort Bliss, Texas.  The applicant’s rank in the Standard Name Line of these orders is shown as SGM.

	e.  DD Form 2656, dated 3 June 2002, that shows, in pertinent part, in Item 4 (Rank/Pay Grade/Branch of Service) the entry “MSG/E8/ARMY/ARNG.”
   
   f.  The Adjutant General, NMARNG, 2-star letter, dated 29 July 2002 and The Adjutant General of New Mexico, Certificate of Retirement, NMARNG, undated, that show, in pertinent part, Major General Randall E. H___, The Adjutant General, NMARNG, addressed the applicant in the rank of SGM when he congratulated him on the occasion of his retirement.  

   g.  Departments of the Army and the Air Force, NGB, Arlington, VA, memorandum, undated, subject:  Request for Exception to Policy; NGB Form 22 with an effective date of 31 July 2002; and DD Form 214 with an effective date of 31 July 2002.  These documents were previously introduced and considered in this Record of Proceedings.

	h.  Army Review Boards Agency (ARBA), Arlington, VA, memorandum, dated
16 January 2009, issued in response to the applicant’s request to be advanced on the retired list to the grade of E-9 effective at his 30-year point (which was calculated to be around August 2010).  The Senior Legal Advisor, ARBA, informed the applicant that the Army Grade Determination Review Board does not have jurisdiction in the applicant’s case and advised him to apply to the ABCMR.  This document also shows that the Senior Legal Advisor, after reviewing the applicant’s records, stated that it appeared the applicant should have been placed on the retired list on 1 August 2002 in the grade of E-9 under the provisions of Title 10, U.S. Code (USC), section 3963; since at the time of retirement the applicant was on full-time National Guard duty.

16.  Title 10, USC, section 3963 (Highest grade held satisfactorily:  Reserve enlisted members reduced in grade not as a result of the member’s misconduct), provides that a Reserve enlisted member of the Army described in subsection (b) who is retired under section 3914 of this title shall be retired in the highest enlisted grade in which the member served on active duty satisfactorily (or, in the case of a member of the National Guard, in which the member served on full-time National Guard duty satisfactorily), as determined by the Secretary of the Army.  Subsection b applies to a Reserve enlisted member who (1) at the time of retirement is serving on active duty (or, in the case of a member of the National Guard, on full-time National Guard duty) in a grade lower than the highest enlisted grade held by the member while on active duty (or full-time National Guard duty), and (2) was previously administratively reduced in grade not as a result of the member’s own misconduct, as determined by the Secretary of the Army.  This section applies with respect to Reserve enlisted members who are retired under section 3914 of this title after September 30, 1996. 

17.  Title 10, USC, section 3964 (Higher grade after 30 years of service:  warrant officers and enlisted members), provides that each retired member of the Army covered by subsection (b) who is retired with less than 30 years of active service is entitled, when his active service plus his service on the retired list totals
30 years, to be advanced on the retired list to the highest grade in which he served on active duty satisfactorily (or, in the case of a member of the National Guard, in which he served on full-time duty satisfactorily), as determined by the Secretary of the Army. (b) This section applies to (1) warrant officers of the Army; (2) enlisted members of the Regular Army; and (3) reserve enlisted members of the Army who, at the time of retirement, are serving on active duty (or, in the case of members of the National Guard, on full-time National Guard duty).

18.  Department of Defense (DoD) Financial Management Regulation (FMR), Volume 7B (Military Pay Policy and Procedures - Retired Pay), Chapter 1 (Initial Entitlements - Retirements), section 0105 (Rank and Pay Grade), paragraph 010501A (General Determinations) states, in pertinent part, unless entitled to a higher grade under some other provision of law, those Regular and Reserve 


members who retire other than for disability, will retire in the Regular or Reserve grade they hold on the date of retirement.  Paragraph 10503 (Satisfactory Service) provides that the determination as to what constitutes satisfactory service for the purpose of retirement in the highest grade is within the discretionary power of the Secretary of the Military Department concerned.

19.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), Chapter 12 (Retirement for Length of Service), paragraph 12-4 (Twenty-year retirement law (10 USC 3914)), in pertinent part, provides that a Soldier of the Regular Army, Army National Guard, or the USAR who has completed 20, but less than 30, years of active Federal service in the U.S. Armed Forces may, at the discretion of the Secretary of the Army, be retired at his request.  The Soldier must have completed all required service obligations at the time of retirement.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, his records should be corrected to show he retired in the grade of SGM/E-9 because the highest grade he successfully held while on active duty was SGM/E-9 and he held this grade for a period of about two years.

2.  The evidence of record shows the applicant served in an enlisted status on full-time National Guard duty as a member of the ARNG from 25 July 1983 to
31 July 2002.  Records also show the applicant was promoted to the grade of MSG/E-8 with a DOR of 1 December 1996; appointed to the rank of SGM/E-9 with a DOR of 15 December 2000; and reappointed to the rank of MSG/E-8 with a DOR of 1 December 1996, effective 15 May 2002.

3.  The evidence of record shows the applicant requested an exception to policy for a 7-month TIG waiver to retire in the grade of SGM/E-9, effective 1 August 2002.  The evidence of record also shows that, on or about 10 January 2002, the Chief, Human Resources Policy and Programs Division, NGB, Arlington, VA, approved the applicant’s request for exception to policy to retire at his current grade (i.e., SGM/E-9).  Moreover, the evidence of record shows the applicant served satisfactorily on active duty in the grade of SGM/E-9.

4.  It is not clear why the applicant’s records were annotated to show his reappointment to the rank of MSG/E-8, effective 15 May 2002; however, it is noted that this was the same date the applicant was attending his pre-separation processing at Fort Bliss, Texas.

5.  The evidence of record shows the applicant honorably retired from active duty based on sufficient service for retirement, effective 1 August 2002, and that he was placed on the retired list in the grade of MSG/E-8.

6.  There is no evidence the applicant was reduced as a result of misconduct.  In fact, the evidence of record shows the applicant was granted a waiver of the SGM/E-9 TIG requirement and approved to retire, as an exception to policy, in his current grade (i.e., SGM/E-9), effective 1 August 2002.  Thus, based on the available evidence, it is reasonable to conclude that the applicant’s records were erroneously annotated to show he was reappointed to the grade of MSG/E-8 and, as a result, the applicant was incorrectly retired in that grade.

7.  Title 10, USC, section 3963, in pertinent part, provides that a National Guard enlisted member, on full-time National Guard duty, in a grade lower than the highest enlisted grade held by the member while on full-time National Guard duty, and who was previously administratively reduced in grade not as a result   of the member’s own misconduct, as determined by the Secretary of the Army, shall be retired in the highest enlisted grade in which the member served on active duty.  Therefore, in view of all of the foregoing, it would be appropriate to correct the applicant’s records to show he was honorably retired, in the grade of SGM/E-9, effective 1 August 2002.
 
BOARD VOTE:

___XX_____  ____XX____  _____XX___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all State Army National Guard and Department of the Army records of the individual concerned be corrected by showing he was honorably retired, in the grade of SGM/E-9, effective 1 August 2002.

2.  As a result of the foregoing correction, the Board recommends the Defense Finance and Accounting Service be notified to provide the applicant payment of all retired back pay due as a result of this correction of records based on his retirement in the grade of SGM/E-9, effective 1 August 2002.




      _______ _   _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)                                         AR20080019714



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