IN THE CASE OF:	  

		BOARD DATE:	  15 June 2010

		DOCKET NUMBER:  AR20090019129 


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 to be advanced on the retired list in pay grade E-7.

2.  The applicant states he held E-7 for over 4 years and should retire as an E-7.

3.  The applicant provides the following documents in support of his application:

* self-authored statement
* promotion orders to E-7
* request for administrative reduction
* reduction orders to E-6
* three orders for Full-Time National Guard Duty (FTNGD)
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for 
   the period ending 31 August 2007
* Army National Guard Retirement Points History Statement

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 4 September 1947.  After having prior service in the U.S. Marine Corps, he enlisted in the Army National Guard on 19 October 1982.

2.  Orders published on 24 February 1989 promoted the applicant to E-7.

3.  The applicant’s Army National Guard Retirement Points History Statement shows he received a total of 316 active duty points for the retirement year beginning 19 October 1988 through retirement year ending 3 October 1993.

4.  On 27 September 1993, the applicant submitted a request for administrative reduction to E-6.

5.  Orders published on 4 October 1993 show the applicant was reduced from 
E-7 to E-6 effective 4 October 1993.

6.  His Notification of Eligibility for Retired Pay at Age 60 is dated 23 October 1997.

7.  Orders show the applicant was ordered to FTNGD during the following periods as an E-6:

* 4 October 1993 to 3 October 1996
* 4 October 1996 to 18 October 2001
* 19 October 2001 to 4 September 2007
* 15 January 2005 to 4 September 2007

8.  On 15 February 2007, the applicant submitted a request for retirement from the Indiana National Guard effective 1 September 2007.

9.  The applicant was discharged from the Army National Guard on 1 September 2007 in pay grade E-6 and transferred to the Retired Reserve on the following day.

10.  He reached age 60 on 4 September 2007.

11.  The applicant provided a self-authored statement in support of his claim and indicated the following:

	a.  He requests to be advanced on the Retired List in the highest grade that he satisfactorily held while in the Indiana Army National Guard.

	b.  He previously held the grade of E-7 from 24 February 1989 to 4 October 1993 even though he retired on 1 September 2007 as an E-6.

	c.  He accepted a voluntary administrative reduction (without prejudice) in order to fill a full-time position and held that position until he retired.

12.  His Army National Guard Retirement Points History Statement shows his highest grade held was E-7.

13.  Title 10, U.S. Code, section 3963 (Highest grade held satisfactorily:  Reserve enlisted members reduced in grade not as a result of the member's misconduct) states:

	a.  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 the case of a member of the National Guard, in which the member served on FTNGD satisfactorily), as determined by the Secretary of the Army.

	b.  This section applies to a Reserve enlisted member who  (1) at the time of retirement is serving on active duty (or, in the case of a member of the National Guard, on FTNGD) in a grade lower than the highest enlisted grade held by the member while on active duty (or FTNGD) and (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.

14.  National Guard Regulation 600-200 Implementation Policy, dated 1 October 2006, defines FTNGD as training or other duty, other than inactive duty, performed by a member of the Army National Guard of the United States or the Air National Guard of the United States in the member’s status as a member of the National Guard of a State or territory, the Commonwealth of Puerto Rico, or the District of Columbia under section 316, 502, 503, 504, or 505 of Title 32, 
U.S. Code, for which the member is entitled to pay from the United States or for which the member has waived pay from the United States.

15.  On 17 May 2010, a Board staff member emailed S_____ W_____, a representative at the U.S. Army Human Resources Command, St. Louis, MO, in regard to his interpretation of Title 10, U.S. Code, Section 3963a.  This portion of the law states “…shall be retired in the highest enlisted grade in which the member served on active duty satisfactorily…”  Mr. W______ responded by stating “If he served on active duty for one day satisfactorily in the higher grade he is to be retired in that grade.  MA NG should be directed to correct their retirement and informed DFAS.”

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that he held E-7 for over 4 years and should retire as an E-7 are acknowledged.  The evidence of record is sufficient as a basis on which to grant the relief requested.  
2.  The evidence of record shows the applicant was promoted to E-7 on 24 February 1989.

3.  The applicant’s Army National Guard Retirement Points History Statement shows he received a total of 316 active duty points from retirement year beginning 19 October 1988 through retirement year ending 3 October 1993.

4.  The applicant voluntarily submitted a request for administrative reduction to 
E-6 to fill a full-time position.  Orders were published which administratively reduced him to E-6 on 4 October 1993.

5.  By law, a Reserve enlisted member of the Army 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 as determined by the Secretary of the Army.

6.  Even though the evidence of record confirms the applicant served on active duty satisfactorily as an E-7, he was placed on the Retired List in pay grade E-6.  

7.  It appears that an error exists in this case regarding the applicant’s retirement grade.  Therefore, it would be appropriate to amend the applicant’s records to show he was placed on the retired list in pay grade E-7.

BOARD VOTE:

____X___  ____X___  ____X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all State National Guard and Department of the Army records of the individual concerned be corrected by showing he was retired and placed on the retired list on 1 September 2007 in the retired grade of SFC, E-7.


2.  That, upon implementation of the correction in paragraph 1 above, the Defense Finance and Accounting Service should audit the retired pay account of the individual concerned to determine all monies due to him and that he be paid all monies due to him.




      _______ _   _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)                                         AR20090019129





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ABCMR Record of Proceedings (cont)                                         AR20090019129



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