IN THE CASE OF:	

		BOARD DATE:	        14 OCTOBER 2009

		DOCKET NUMBER:  AR20090006872 


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 his retired rank and pay grade be changed to sergeant (SGT)/E-5.   

2.  The applicant states, in effect, he is receiving retired pay as a specialist (SPC)/E-4 and that he should be receiving pay as a SGT/E-5 which is the highest grade he held and satisfactorily served in during military service. 

3.  The applicant provides a NGB Form 23B (Army National Guard Retirement Points History Statement) and DD Form 2656-5 (Reserve Component Survivor Benefit Plan (RCSBP) Election Certificate) in support of his application.  

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he completed a total of 20 years, 8 months and 1 days of creditable service for retired pay based on active duty service in the United States Marine Corps (USMC) and Reserve Component (RC) service in the United States Marine Corps Reserve (USMCR), Army National Guard (ARNG) and United States Army Reserve (USAR) between 4 October 1965 and 4 April 1994.  

2.  The applicant's record shows that while serving on active duty in the USMC, he was promoted to the rank of SGT/E-5 on 1 March 1975.  It further shows he held this rank, on 18 May 1978, at the time he was honorably discharged from the USMC.


3.  The applicant's record also shows that during his military service tenure, he completed a combat tour in the Republic of Vietnam (RVN) and he earned the following awards:  National Defense Service Medal, Army Good Conduct Medal (3rd Award), Army Service Ribbon, Vietnam Service Medal with 2 bronze service stars, RVN Campaign Medal (RVNCM), Presidential Unit Citation, Meritorious Unit Commendation, Navy Unit Commendation, RVN Gallantry Cross with Palm Unit Citation, and Sharpshooter Marksmanship Qualification Badge with Rifle Bar.  

4.  On 13 May 1981, the applicant enlisted in the Army National Guard (ARNG), in the pay grade of E-5.  He served in that grade until 7 June 1984 at which time he was reduced to SPC/E-4 for cause based on unexcused absences from unit training assemblies.

5.  On 2 July 1984, the applicant was honorably discharged from the ARNG, in the rank of SPC/E-4 and transferred to the USAR where he served until he was honorably discharged on 12 November 1987.  

6.  On 6 October 1989, the applicant reenlisted in the ARNG in the rank of SPC/E-4.

7.  On 8 November 1993, the Department of Military Affairs, Minnesota ARNG, issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (20 Year Letter) which informed him he had completed the required years of service and was eligible for retired pay upon application at age 60.  

8.  On 4 April 1984, the applicant was honorably discharged from the ARNG and transferred to the Retired Reserve in the rank of SPC/E-4.

9.  On 18 September 2007, upon reaching age 60, the applicant was placed on the Retired List in the retired rank of SPC/E-4.  He began receiving retired pay in that rank.  There are no documents on file in his record that show a grade determination was made in conjunction with his placement on the Retired List.  

10.  On 30 July 2009, the Army Grade Determination Board returned a grade determination request on the applicant based on lack of jurisdiction.  The reason cited was the loss of jurisdiction once the applicant was placed on the Retired List by the United States Army Human Resources Command, St. Louis, Missouri (HRC-St. Louis).  


11.  Title 10 of the United States Code, Section 12731 (10 USC 12731) provides the legal authority for non-regular Reserve retirement at age 60.  It states, in effect, that a member is eligible to receive non-regular retired pay upon application at age 60, if they have completed 20 qualifying years of service in a Reserve Component (RC).  

12.  Title 10 of the United States Code, Section 1406 provides the legal authority for computing retired pay.  It states, in pertinent part, that in the case of a person who is entitled to retired pay under Section 12731 of this title, the retired base pay is the monthly basic pay, determined at the rates applicable on the date when retired pay is granted, or the highest grade held satisfactorily by the person at any time in the armed forces.

13.  Army Regulation 135-180 (Qualifying Service for Retired Pay) implements statutory authorities governing the granting of "retired pay" to Soldiers and former Reserve components Soldiers.  Paragraph 2-11c(3) states that service in the highest grade will not be deemed satisfactory and the case will be forwarded to the Secretary of the Army's Ad Hoc Review Board for final determination of the Soldier's retirement grade if, during the mandatory review of the Soldier's records by the Retired Activities Directorate, it is determined that revision to a lower grade was expressly for prejudice or cause, or there is information in the Soldier's service record to indicate clearly that the highest grade was not served satisfactorily. 

14.  Army Regulation 15-80 (Army Grade Determination Review Board and Grade Determinations) establishes policies, procedures, and responsibilities of the Army Grade Determination Review Board (AGDRB) and other organizations delegated authority to make grade determinations on behalf of the Secretary of the Army (SA).  Paragraph 2-4 contains guidance on grade determination considerations and states that a grade determination is an administrative decision to determine appropriate retirement grade, retirement pay, or other separation pay.  Generally, determination will be based on the Soldier's overall service in the grade in question, either on active duty or other service qualifying the Soldier for service/physical disability retirement, receipt of retired pay, or separation for physical disability.  Service in the highest grade or an intermediate grade normally will be considered to have been unsatisfactory when reversion to a lower grade was expressly for prejudice or cause; however, one specific act of misconduct may or may not form the basis for a determination that the overall service in that grade was unsatisfactory.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he should have been placed on the 
Retired List and received retired pay in the highest grade held which was E-5, was carefully considered and found to have merit.  By law, a member eligible for non-regular retired pay at age 60 will receive retired pay based on the highest grade held satisfactorily at any time in the armed forces.

2.  By regulation, although service in a grade is generally considered unsatisfactory when reversion to a lower grade is for prejudice or cause, grade determinations will be based on a Soldier's overall record of service.  In this case, the evidence of record confirms the applicant held and served in the grade of E-5 for more than 4 years from 1 March 1975, the date he attained the grade, through 18 May 1978, the date he was honorably discharged from the USMC in that grade.  

3.  Although the applicant was reduced for cause while serving in the USAR, based on his overall record of service in the pay grade E-5, which included combat service in the RVN and an honorable discharge in that grade, it would be appropriate and serve the interest of equity to correct the applicant's record to show he was placed on the Retired List and authorized retired pay in the grade of E-5 which is the highest grade he held and in which he satisfactorily served while in an armed force.  

4.  In view of the fact of this case, it would be appropriate and serve the interest of equity to correct his record to show he was placed on the Retired List at age 60, in the rank/grade of SGT/E-5, and to provide him all back retirement pay due as a result.  

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 showing he was placed on the Retired List in the rank/grade of SGT/E-5, on
18 September 2007, and by providing him all back retired pay due as a result.
      
      
      
      
      _______ _   __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)                                         AR20090006872



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ABCMR Record of Proceedings (cont)                                         AR20090006872



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