BOARD DATE: 30 July 2009
DOCKET NUMBER: AR20090004760
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 retirement pay be based upon the highest rank and grade he held as sergeant major (SGM)/E-9 instead of master sergeant (MSG)/E-8.
2. The applicant states, in effect, that he has been receiving retired pay as a MSG, for the last 17 years. He continues that his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) with the period ending 12 October 1974 shows he held the rank long enough to receive retired pay as a SGM.
3. The applicant provides his NGB Form 22; Utah Army National Guard (UTARNG) Special Orders Number 245, dated 12 October 1974.
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 enlisted in the Army National Guard on 13 March 1951. On
1 May 1964, he was promoted to the grade of E-8.
3. UTARNG Special Orders Number 64, dated 15 March 1974, shows he was promoted to the rank and grade of SGM/E-9 effective 15 March 1974.
4. UTARNG Special Orders Number 186, dated 5 August 1974, shows he was administratively reduced without prejudice to the rank and grade of MSG/E-8 effective 5 August 1974.
5. UTARNG Special Orders Number 245, dated 12 October 1974, shows he was transferred to the U.S. Army Reserve Control Group (Retired) in the rank and pay grade of MSG/E-8.
6. Item 3 (Grade) of the applicant's NGB Form 22 shows the entry "MSG" and item 29 (Highest Grade Held) shows the entry "SGM/E-9."
7. Army Regulation 135-180 (Army National Guard and Army Reserve-Qualifying Service for Retired Pay Nonregular Service), indicates, in pertinent part, if a Soldier was transferred to the Retired Reserve or discharged prior to
25 February 1975, retired grade will be that which the Soldier held at time of transfer to the Retired Reserve or discharge, unless the Soldier held a higher grade at least 185 days or six calendar months on active duty or in an active reserve status as an enlisted Soldier.
DISCUSSION AND CONCLUSIONS:
1. Evidence shows the applicant was promoted to SGM on 15 March 1974. He served in the grade of SGM for a total of 4 months and 22 days prior to his retirement. In accordance with Army Regulation 135-180 he did not meet the requirement to have satisfactorily served in the rank of SGM that would have entitled him to the retired grade of SGM. Therefore, his records appear to be not in error.
2. Unfortunately, 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:
1. 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.
2. The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to our Nation. The applicant and all Americans should be justifiably proud of his service in arms.
_______ _ __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.
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