IN THE CASE OF:
BOARD DATE: 20 May 2010
DOCKET NUMBER: AR20090013111
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 was placed on the Retired List in the rank of sergeant first class/E-7.
2. The applicant states he should have been placed on the Retired List in the pay grade of E-7. He states Title 10, U.S. Code, section 3963, should have been followed to determine his placed on the Retired List, not Title 10, U.S. Code, section 3964.
3. The applicant provides:
* letter to the Paralegal, Army Grade Determination Review Board, dated 19 August 2009
* Orders 147-4, dated 27 May 1999
* undated letter to the Army Review Boards Agency
* Orders 3--1, dated 12 March 1990
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. With 8 years, 9 months, and 18 days of total service for pay purposes, the applicant enlisted in the Massachusetts Army National Guard (MAARNG) on 8 March 1979 for 3 years in the pay grade of E-5.
3. He was promoted to the pay grade of E-6 on 7 December 1981. After he extended his period of enlistment, he was promoted to the pay grade of E-7 on 2 November 1984. His records show that he continued to extend his 8 March 1979 enlistment.
4. Orders 3--1, dated 12 March 1990, show the applicant was voluntary reduced from the pay grade of E-7 to the pay grade of E-5 to accept a tour of duty in the Active Guard Reserve (AGR).
5. On 5 June 1991, the applicant was issued a Notification of Eligibility for Retired Pay at Age 60.
6. The applicant's records show that he was on an AGR continuous tour of duty when he was promoted to the pay grade of E-6 on 2 August 1995.
7. Orders 147-4 were published on 27 May 1999 releasing him from active duty with an honorable characterization of service effective 31 August 1999 and placing him on the Retired List effective 1 September 1999 in the pay grade of
E-6. The orders show that his retirement was mandatory as a result of obtaining 20 years and 12 days of qualifying service for retired pay.
8. The applicant submitted an appeal to the Army Grade Determination Board requesting advancement on the Retired List to the highest grade satisfactorily held while on active duty.
9. On 13 August 2009, he was notified by the Senior Legal Advisor that although the Army Grade Determination Review Board has the authority to advance him on the Retired List to the grade of E-7 effective (sometime in 2009), under the provisions of Title 10, U.S. Code, section 3934, his records reflect he should have been placed on the Retired List in the pay grade of E-7 under the provisions of Title 10, U.S. Code, section 3963 in 1999. He was instructed to apply to this Board.
10. Title 10, U.S. Code, chapter 369, section 3963(a), 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 case of a member on full-time National Guard duty satisfactorily), as determined by the Secretary of the Army. Section 3963(b)(1) applies to a Reserve enlisted member who, 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 section 3963(b)(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.
DISCUSSION AND CONCLUSIONS:
1. At the time the applicant was promoted to the pay grade of E-7, he was serving in the MAARNG. He accepted an administrative reduction to the pay grade of E-5 to accept a position in the AGR Program and he was subsequently promoted to the pay grade of E-6.
2. The applicant was on active duty serving in the pay grade of E-6 at the time he retired. Based on the available evidence, he was properly placed on the Retired List in the pay grade of E-6.
3. His records do not contain evidence nor has he provided any evidence to show that he ever served on active duty in the pay grade of E-7. Until he has provided such evidence, he is not entitled to be placed on the Retired List in the pay grade of E-7.
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) AR20090013111
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ABCMR Record of Proceedings (cont) AR20090013111
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