BOARD DATE:	  4 February 2010

		DOCKET NUMBER:  AR20090014718 


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 correction of his records to show he was transferred to the Retired Reserve at age 60 in the rank/grade of staff sergeant (SSG)/E-6 instead of sergeant (SGT)/E-5.  

2.  The applicant states that a mistake was made with respect to his retired grade when he retired in February 2003.  He was previously promoted to SSG/E-6 on 16 February 1984; however, when he turned 60, he was retired as an E-5 instead of an E-6.

3.  The applicant provides a copy of Orders 4-1, issued by Headquarters,
30th Engineer Brigade, North Carolina Army National Guard (NCARNG) on 16 February 1984, 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 2 February 1943.  He was inducted into the Army of the United States and entered active duty on 7 September 1967.  He was subsequently discharged on 11 September 1967 and executed a 3-year enlistment on 12 September 1967.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 55B (Ammunition Storage Specialist).  He was honorably released from active duty in the rank/grade of specialist four (SP4)/E-4 on 3 September 1970 and he was transferred to the U.S. Army Reserve (USAR) Control Group for completion of his Reserve obligation.

3.  The applicant's records also show he enlisted in the NCARNG on 10 January 1975 and served in MOS 63C (Track Vehicle Mechanic).  He also reenlisted and/or extended in the NCARNG on 10 January 1976 and 5 August 1976 and was honorably discharged in the rank/grade of specialist five (SP5)/E-5 on 4 August 1979.  

4.  The applicant's records further show he executed a 3-year enlistment in the NCARNG in the rank/grade of SGT/E-5 on 28 October 1979 and subsequently served through several extensions and/or reenlistments in various staff positions. He was promoted to SSG/E-6 on 16 February 1984.  He also served in the rank/grade of SSG/E-6 in various assignments from 1984 to 1989.  

5.  On 26 June 1990, Headquarters, 2nd Battalion, 120th Infantry, NCARNG, published Orders 23-1, announcing the applicant's administrative reduction from SSG/E-6 to SP4/E-4, per the applicant's request.  

6.  On 20 September 1993, Office of the Adjutant General, NCARNG, issued the applicant his Notification of Eligibility for Retired Pay at Age 60.  This letter notified him that he had completed the required years of service and would be eligible for retired pay upon application at age 60.

7.  On 5 March 1995, the applicant was promoted to SGT/E-5.

8.  On 13 November 1995, Office of the Adjutant General, NCARNG, published Orders 262-30, announcing the applicant's discharge from the ARNG in the rank/grade of SGT/E-5 and assignment to the USAR Control Group (Retired Reserve), effective 27 October 1995.  The NGB Form 22 (Report of Separation and Record of service) he was issued shows he completed 26 years, 6 months, and 20 days of total service for pay, of which, 2 years, 11 months, and 22 days was active service.
9.  On 18 November 2002, U.S. Army Human Resources Command, St. Louis, MO, published Orders P11-280414 announcing the applicant's retirement and placement on the retired list in his retired rank/grade of SGT/E-5, effective 2 February 2003, his 60th birthday.

10.  Title 10 of the U.S. Code, section 1406(b)(2) provides for non-regular service retirement and states 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.  

11.  National Guard Regulation 600-200 (Enlisted Personnel Management), establishes the standards, policies and procedures for the management of ARNG enlisted soldiers and specifically the policy for enlisted promotion, appointment, and reduction.  Paragraph 6-35 in effect at the time provides that a Soldier may volunteer for reduction to any lower rank in order to obtain a benefit or for personal preference.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant served on active duty from 1967 to 1970 and held the rank/grade of SP4/E-4.  He subsequently enlisted and served in the ARNG and attained the rank/grade of SSG/E-6.  He performed satisfactorily in that rank/grade until he was administratively reduced to SP4/E-4 on 26 June 1990.  He was subsequently promoted to SGT/E-5 on 5 March 1995 and was transferred to the Retired Reserve on 27 October 1995 in that rank/grade. 

2.  By law, in connection with a non-regular retirement, enlisted members are entitled to receive retired pay in the highest grade held satisfactorily at any time in the Armed Forces.  The evidence of record in this case confirms the applicant’s service in the highest grade he held (pay grade E-6) was satisfactory.

3.  In view of the facts of this case, the applicant’s record should be corrected to show he was authorized to receive non-regular retired pay based on the rank/grade of SSG/E-6 effective 2 February 2003, the date he turned age 60 and became eligible to receive retired pay.  Further, it would be appropriate to provide him all back retired pay due as a result of this correction.





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 his retired grade was established as SSG/E-6 and he was authorized to receive retired pay in that grade as of 2 February 2003, the date he reached age 60 and began receiving retired pay; and by providing him all back retired pay due as a result of this correction.




      _______ _   ___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)                                         AR20090014718



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ABCMR Record of Proceedings (cont)                                         AR20090014718



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