IN THE CASE OF:	  

		BOARD DATE:	  21 April 2009

		DOCKET NUMBER:  AR20080019999 


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 that he be advanced to the rank/grade of first sergeant (1SG)/E-8 on the Retired List.

2.  The applicant states that he retired as a sergeant first class (SFC)/E-7 but prior to his retirement, he served as a 1SG/E-8 for a period of 18 months during his 36 years service in an Army National Guard (ARNG) Active Guard Reserve (AGR).  He adds that the record is wrong in that his retirement rank/grade should be 1SG/E-8.  He states he was promoted to E-8 on 12 June 1987 and served as a 1SG until 27 December 1988.  At that time, he took a voluntary reduction to SFC/E-7 to accept an AGR position.  He adds that he believes the Army Grade Determination Review Board (AGDRB) should advance him on the retired list to 1SG/E-8 and that this Board should refer to Title 10, U.S. Code, section 3963.  He was an ARNG 1SG with 62 days of active duty during his 18 month tour as a 1SG and also believes that serving in any capacity should be considered active duty as it pertains to the contemporary operating environment. 

3.  The applicant provided the following additional documentary evidence in support of his application:

	a.  a copy of his DD Form 214 (Certificate of Release from Active Duty), dated 31 March 2007; 

	b.  a copy of his National Guard Bureau (NGB) Form 23B (Army National Guard Retirement Points History statement), dated 29 August 2006; 

	c.  a copy of Orders 011-078, issued by Joint Forces Headquarters, Oregon Army National Guard (ORARNG), Salem, OR, dated 11 January 2007; 

	d.  a copy of Orders 113-12, issued by the Military Department, State of Oregon, Salem, OR, dated 12 June 1987; and

	e.  a copy of Orders 249-4, issued by Military Department, State of Oregon, dated 27 December 1988.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he initially enlisted in the ORARNG on 12 March 1969.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11E (Armor crewman).  He was honorably discharged in the rank/grade of staff sergeant (SSG)/E-6 on 11 March 1976.

2.  After a short break in service, the applicant’s records show he enlisted in the ORARNG in the rank/grade of SSG/E-6 on 1 October 1977.  He was assigned to Troop K, 3rd Squadron, 116th Armored Cavalry Regiment, Hood River, OR. 

3.  The applicant’s records further show he was promoted to the rank/grade of SFC/E-7 on 25 April 1986.  He subsequently completed the Reserve Components (RC) 1SG course on 21 August 1987 and was promoted to the rank/grade of 1SG/E-8 on 12 June 1987.  

4.  The applicant’s records also show he served as the 1SG of K Troop, 3rd Squadron, 116th Armored Cavalry Regiment from 1 December 1987 to
26 December 1988.

5.  On 27 December 1988, the applicant accepted a voluntary reduction in rank/grade from 1SG/E-8 to SFC/E-7 for the purpose of qualifying for and accepting an AGR position.  Accordingly, the Military Department, State of Oregon, published Orders 249-4 reducing the applicant to the rank/grade of SFC/E-7 and further ordering him to full time National Guard duty in an AGR status, effective 27 December 1988  

6.  The applicant’s records show that he remained in an AGR status until he was honorably released from active duty on 31 March 2007 and placed on the retired list in his retired rank/grade of SFC/E-7 on 1 April 2007.  The DD Form 214 he was issued shows he completed 20 years and one month of creditable active service and 16 years and 5 months of inactive service.

7.  On 31 January 2007, the applicant petitioned the Army Board for Correction of Military Records (ABCMR) for advancement on the retired list.  His case was referred to the AGDRB for a grade determination.  However, the AGDRB returned his case without action on 26 June 2007 and advised that it did not have jurisdiction in his case.  The AGDRB further remarked that in order to be eligible for advancement on the retired list to the rank/grade of 1SG/E-8 under 10 USC, section 3964, the applicant must have served satisfactorily while on active duty or full-time National Guard duty in the grade of E-8.  The AGDRB subsequently referred his case to the ABCMR for further action.

8.  On 15 October 2007, the ABCMR notified the applicant that his application was incomplete in that a copy of his DD Form 214 was not included with his application and that there was no available evidence showing he served on active duty in the pay grade of E-8.

9.  Title 10, U.S. Code, section 3914 provides the legal authority for an enlisted member of the Army who has at least 20, but less than 30 years of service, to retire upon their request.  Section 3961 of Title 10 provides the general rule for the proper assignment of a retired grade.  It states, in pertinent part, that a Regular Army member who retires other than for physical disability retires in the grade they hold on the date of retirement. 

10.  Title 10, U.S. Code, section 3964 contains the legal authority for the advancement of enlisted members on the Retired List.  It states, in pertinent part, that an enlisted member who is retired with less than 30 years of active service is entitled, when their active service plus their service on the Retired List totals 30 years, to be advanced on the Retired List to the highest grade in which they served on active duty satisfactorily as determined by the Secretary of the Army. 

11.  Army Regulation 635-5 (Separations Documents) prescribes the preparation guidelines for DD Form 214.  It states in pertinent part that Item 4 (Grade, Rate, or Rank) will reflect the active duty grade or rank and pay grade at time of separation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he should be advanced to the rank/grade of 1SG/E-8 on the Retired List.

2.  The applicant’s promotion to 1SG/E-8 on 12 June 1987 and his service as the 1SG of K Troop, 3rd Squadron, 116th Armored Cavalry Regiment from
1 December 1987 to 26 December 1988 is not in question.  However, he did so
in an active National Guard status and not in an active duty status.  He subsequently accepted a voluntary reduction to SFC/E-7 on 27 December 1988 and was ordered to “full-time” National Guard duty, where he remained in the rank of SFC/E-7 until he retired.

3.  By law and regulation, in order to be placed on the Retired List at the highest grade held a Soldier must have 30 years of active service at the time of retirement.  The law allows for members to be advanced on the Retired List to the highest grade they held and in which they satisfactorily served on active duty when their active duty service and time on the Retired List equals 30 years.  Although the applicant has over 30 years of total service, there is no evidence that he had satisfactorily served as a 1SG/E-8 while on active duty or full-time National Guard duty.  Therefore, there is no basis for granting the applicant's requested relief.

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)                                         AR20080019999



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ABCMR Record of Proceedings (cont)                                         AR20080019999



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