IN THE CASE OF:	  

		BOARD DATE:	  20 April 2010

		DOCKET NUMBER:  AR20090015308 


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 private (PV2)/E-2.  In effect, he requests to be advanced on the retired list to the highest grade held.

2.  The applicant states that he transferred from the West Virginia Army National Guard (WVARNG) to the North Carolina Army National Guard (NCARNG) in the rank/grade of specialist four (SP4)/E-4.  He accepted this reduction to allow another Soldier to be promoted.  However, he was later reduced to private first class (PFC)/E-3 and then to PV2/E-2 (both without prejudice) because he was late for drills due to his civilian employment.  Nevertheless, he held the rank/grade of SSG/E-6 in the WVARNG from 1 March 1981 until he transferred to the NCARNG on 27 February 1989.  He understood that upon application for retired pay he would be retired as a SSG/E-6.  

3.  The applicant provides a copy of Orders P07-908738, issued by the U.S. Army Human Resources Command (USAHRC), St. Louis, MO, on 31 July 2009; a copy of his National Guard Bureau (NGB) Form 23 (Army National Guard Retirement Points History Statement), dated 17 March 2009; copies of Orders 11-1, 8-1, and 6-1 issued by Headquarters, 2nd Battalion, 120th Infantry, NCARNG, on 24 August 1992, 30 September 1992, and 27 February 1989, respectively; and a copy of Orders 60-65, issued by WVARNG, on 1 March 1981, in support of his request.



CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was born on 23 January 1950.

2.  Having had prior service in the U.S. Air Force, his records show he enlisted in the WVARNG on 25 September 1975.  He held military occupational specialty 19D (Cavalry Scout) and served through multiple extensions or reenlistments in the WVARNG.

3.  On 1 March 1981, WVARNG published Orders 60-65 announcing his promotion to SSG/E-6 with an effective date and date of rank of 1 March 1981.

4.  On 27 February 1989, he requested a voluntary transfer to the NCARNG and subsequently accepted a position in the rank/grade of SP4/E-4 with the 2nd Battalion, 120th Infantry, NCARNG.

5.  On 27 February 1989, Headquarters, 2nd Battalion, 120th Infantry, NCARNG, published Orders 6-1 administratively reducing him from SSG/E-6 to SP4/E-4, without prejudice and based on his request, in accordance with National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management).

6.  On 9 August 1992, by certified mail, his immediate commander notified him that he was absent without authority from scheduled unit training assembly (UTA) or multiple unit training assembly (MUTA) on 7-9 August 1992.  His commander also notified him that he had accrued 5 unexcused absences within a 1 year period and that he could be declared an unsatisfactory participant and may be transferred to the Individual Ready Reserve in accordance with Army Regulation 135-191(Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures).

7.  On 24 August 1992, Headquarters, 2nd Battalion, 120th Infantry, NCARNG, published Orders 8-1 reducing him to PFC/E-3 by reason of inefficiency (without prejudice) in accordance with paragraph 6-44a of NGR 600-200.

8.  On 13 September 1992, by certified mail, his immediate commander notified him that he was absent without authority from scheduled UTA/MUTA on 
12-13 September 1992 and had accrued 9 unexcused absences within a 1 year period.

9.  On 30 September 1992, Headquarters, 2nd Battalion, 120th Infantry, NCARNG, published Orders 11-1 reducing him to PV2/E-2 by reason of inefficiency (without prejudice) in accordance with paragraph 6-44a of NGR 
600-200.
10.  On 5 October 1992, his immediate commander initiated separation action against him by reason of accruing 9 or more unexcused absences within a 
1 year period.  However, there is no evidence in his records of the disposition for this request.

11.  On 12 January 1993, NCARNG issued him a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).  This letter notified him he had completed the required years of service and would be eligible for retired pay upon application at age 60.

12.  On 24 February 1993, the Office of the Adjutant General, NCARNG, published Orders 39-107, announcing the applicant's discharge from the NCARNG in the rank/grade of PV2/E-2 and assigning him to the U.S. Army Reserve Control Group (Retired Reserve), effective 28 February 1993.

13.  The NGB Form 22 (Report of Separation and Record of Service) he was issued shows he completed 20 years and 11 days of total service for pay.

14.  On 31 July 2009, USAHRC-St. Louis, MO, published Orders P07-908738 announcing his retirement and placement on the retired list in his retired rank/grade of PV2/E-2, effective 23 January 2009, his 60th birthday.

15.  NGR 600-200 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(d) of the version in effect at the time provided that a Soldier may volunteer for reduction to any lower rank in order to obtain a benefit or for personal preference.  Additionally, paragraph 6-44 stated that Soldiers could be reduced for inefficiency.  Inefficiency is defined not only as technical incompetence but also as patterns or acts of conduct demonstrating that the Soldier concerned lacks the abilities and qualities required and expected of a Soldier of his or her rank and experience.  Commanders may consider any misconduct, to include a record of unexcused absences or unsatisfactory participation, as evidence of inefficiency.

16.  Army Regulation 135-180 (Qualifying Service for Retired Pay Nonregular Service) states that a person granted retired pay will receive such pay in the highest grade (temporary or permanent) satisfactorily held during his entire period of service.  Service in the highest grade will not be deemed satisfactory if it is determined that any of the following exist:  (a) revision to a lower grade was expressly for prejudice or cause, due to misconduct, or punishment pursuant to Article 15, Uniform Code of Military Justice, or court-martial; or (b) there is information in the Soldier's service record to indicate clearly that the highest grade was not served satisfactorily. 
17.  Title 10, USC, section 1406 governs the retired pay base for members who first became members before 8 September 1980.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should have retired at the rank/grade of SSG/E-6 instead of PV2/E-2.

2.  The evidence of records shows the applicant held the rank/grade of SSG/E-6 from 1981 through 1989.  He was administratively reduced to SP4/E-4 for the purpose of accepting another position and not due to his own misconduct.  His voluntary acceptance of a new position in a lower grade did not exempt him from participating in his scheduled UTA/MUTA.  He elected not to participate.  By doing so, he subjected himself to a reduction in grade on two occasions, caused by his own actions.  Willful unexcused absence is a form of misconduct. 

3.  Nevertheless, the applicant held the rank/grade of SSG/E-6 from 1981 through 1989 and served satisfactorily in that rank/grade.  His misconduct occurred at the lower grade and not while serving in the rank/grade of SSG/E-6.  By law and regulation, 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 shows he did so.

4.  In view of the circumstances of this case, his records should be corrected to show he was authorized to receive non-regular retired pay based on the rank/grade of SSG/E-6, effective 23 January 2010, the date he turned 60 and became eligible to receive retired pay.  Further, it would be appropriate to provide him with 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:

	a.  amending Orders P07-908738, dated 31 July 2009, to show he was placed on the retired list in the retired rank/grade of SSG/E-6; and

	b.  paying him all back pay and allowances 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)                                         AR20090015308



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ABCMR Record of Proceedings (cont)                                         AR20090015308



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