IN THE CASE OF:	

		BOARD DATE:	  18 February 2010

		DOCKET NUMBER:  AR20090009457 


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 that he was placed on the retired list in the rank/grade of staff sergeant (SSG)/E-6 instead of sergeant (SGT)/E-5.  

2.  The applicant states that he served in the Air National Guard and that he was discharged as a technical sergeant/E-6 in 1978.  He then enlisted in the Army National Guard (ARNG) as a staff sergeant (SSG)/E-6.  He was reduced to SGT/E-5 for missing a drill weekend.  When he was reduced, he was not provided an opportunity to have his case heard by a reduction board.  He was merely given a letter (which was stolen from him some time ago) and was informed of the removal of his E-6 stripes.  He believes that his rights as a noncommissioned officer were violated since he was not afforded the opportunity to have his case considered by a board.  His unit has provided no assistance since he left the Arizona ARNG (AZARNG) in 1985 and he was not transferred to the Retired Reserve until 1997, some 12 years later. 

3.  The applicant provides a copy of Orders P-09-305292, issued by the U.S. Army Reserve Personnel Command, St. Louis, MO, on 19 September 1998; a copy of his National Guard Bureau (NGB) Forms 22 (Report of Separation and Record of Service-Army), dated 10 April 1985; a copy of his NGB 22 (Report of Separation and Record of Service-U.S. Air Force (USAF)), dated 1 October 1978; and a copy of NGB Form 22 (Report of Separation and Record of Service in the Air National Guard of Arizona and as a Reserve of the Air Force), dated     7 February 1972, in support of his request.

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 records show he was born on 29 December 1937.

3.  The applicant’s USAF records are not available for review with this case; however, his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending on 7 January 1964 shows he had prior service in the USAF and that he enlisted in the USAF on 8 January 1960.  He held military occupational specialty (MOS) 43151C (Jet Engine Mechanic) and was honorably discharged on 7 January 1964 for the purpose of immediate reenlistment.

4.  The applicant’s DD Form 214 for the period ending 5 January 1968 shows he executed a 4-year reenlistment in the USAF and he was honorably discharged in the rank of SSGT/E-5 on 5 January 1968.

5.  The applicant’s USAF NGB Form 22 for the period ending 7 February 1972 shows he enlisted in the Air National Guard in Phoenix, AZ, on 3 February 1968.  He performed duties in MOS 43171A (Aircraft Maintenance Technician) and was honorably discharged in the rank of technical sergeant (TSGT)/E-6 on 7 February 1972.

6.  The applicant’s USAF NGB 22 for the period ending on 1 October 1978 shows he again enlisted in the Air National Guard on 13 December 1973 and he was honorably discharged in the rank/grade of TSGT/E-6 on 1 October 1978.

7.  The applicant’s records further show he enlisted in the AZARNG for a period of 3 years in the rank/grade of SSG/E-6 on 11 June 1981.  He was awarded primary MOS 73C (Finance Specialist) and secondary MOS 68B (Aircraft Power Plant Repairer).   

8.  On 23 February 1983, Headquarters, 158th Supply and Services Battalion, AZARNG, Phoenix, AZ, published Orders 14-2 directing the applicant’s reduction from SSG/E-6 to SGT/E-5 effective 9 January 1983 with a date of rank of           10 June 1981 for inefficiency, in accordance with chapter 6 of National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management).  

9.  On 1 June 1984, the applicant executed a 3-year extension in the AZARNG in the rank/grade of specialist five (SP5)/E-5

10.  On 26 October 1984, the Department of the Army and Air Force, National Guard Bureau, Falls Church, VA, issued the applicant a Notification of Eligibility for Retired Pay (20-Year Letter).  This letter notified the applicant that he had completed the required years of service and would be eligible for retired pay upon application at age 60. 

11.  On 11 April 1985, the Department of Emergency and Military Affairs, Division of Military Affairs (Army), AZARNG published Orders 71-3 discharging the applicant from the AZARNG and transferring him to the Retired Reserve in the rank/grade of SP5/E-5, effective 10 April 1985.  The NGB Form 22 he was issued shows he completed 24 years, 10 months, and 6 days of service for pay and that his rank/grade was that of a SP5/E-5.

12.  On 19 September 1998, the U.S. Reserve Personnel Command, St. Louis, MO, published Orders P-09-305292 placing the applicant on the retired list in his retired rank/grade of SGT/E-5 effective 29 December 1997, his 60th birthday.

13.  Title 10 of the U.S. Code, section 12731 provides the legal authority for age and service (non-regular) retirements.  Section 1406 provides the legal authority for establishing the retired pay base for members who first became members before September 8, 1980.  Paragraph (b)(2) contains guidance on non-regular service retirement.  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 pay base is the monthly basic pay, determined at the rates applicable on the date when retired pay is granted, of the highest grade held satisfactorily by the person at any time in the Armed Forces.  

14.  NGR 600-200 in effect at the time established the standards, policies and procedures for the management of ARNG enlisted soldiers and specifically the policy for enlisted promotion, appointment, and reduction.  Chapter 6 stated in pertinent part:

	a. Commanders may reduce Soldier for inefficiency.  Inefficient is defined not only as a technical incompetence but also as patterns of acts or course of conduct which is evidence that the Soldier concerned lacked those abilities and qualities required and expected of a Soldier of his or her grade and experience.  Commanders may consider any act or acts of misconduct to include conviction by civil court or unsatisfactory performance whether or not such acts also result in disciplinary action as bearing on inefficiency.  A Soldier who has served in a position for 90 days or more may be reduced one grade for inefficiency.

	b.  Soldiers in pay grades E-5 through E-9 may request to appear before a reduction board.  If the Soldier waived board action, the waiver would be in writing and would be considered as acceptance of the reduction action.  A reduction board, when requested by the Soldier, would be convened within       30 days after a Soldier is notified in writing of the proposed action.  The complete inefficiency action including any appeal would be filed as a permanent document in the Soldier's records.  

15.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Paragraph 2-9 contains guidance on the burden of proof.  It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, that is what the Army did was correct.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his records should be corrected to show he was placed on the retired list in the rank/grade of SSG/E-6 instead of SGT/E-5.  

2.  The evidence of record shows that the applicant enlisted in the AZARNG in the rank/grade of SSG/E-6 on 11 June 1981.  However, he was reduced to SP5/E-5 for inefficiency effective 9 January 1983 and with a date of rank of 11 June 1981, his enlistment date.  The facts and circumstances of his reduction are not available for review with this case.  It is unclear if the applicant requested a reduction board or waived board action.  In the absence of evidence to the contrary, it is presumed that the applicant's reduction for inefficiency was in accordance with applicable regulations at the time.  His dissatisfaction, some 
25 years after he was reduced, does not constitute a violation of his rights. 

3.  By law, retired pay under section 12731 of Title 10 is determined at the rates applicable on the date when retired pay is granted, based on the highest grade held satisfactorily by the person at any time in the Armed Forces.  The applicant did not serve satisfactorily in the rank/grade of SSG/E-6 as evidenced by his reduction to SGT/E-5 for inefficiency.  Therefore, he was correctly transferred to the Retired Reserve and ultimately retired in the rank of SGT/E-5.  There is neither an error nor injustice. 

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)                                         AR20090009457



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ABCMR Record of Proceedings (cont)                                         AR20090009457



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