IN THE CASE OF:	  

		BOARD DATE:	  29 June 2010

		DOCKET NUMBER:  AR20090020453 


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, placement on the Retired List in the rank and pay grade of sergeant first class (SFC), E-7.

2.  The applicant states, in effect, he was promoted to pay grade E-7 in April 2008 and informed in June 2009 he had to retire by 31 July 2009.  He requested his Title 10 active duty for special work orders be extended and was informed this would not be allowed without a waiver.  He then requested a waiver so he could retire in pay grade E-7.  His request was denied.  He was informed he would not be allowed to go over 20 years of active federal service without a waiver.  He was allowed to serve 20 years and 7 months, but not allowed to serve 9 more months.  His chain of command was unable to do anything for him and they processed his paperwork to retire him in pay grade E-6.  

3.  The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and his letter to the Army Grade Determination Review Board (AGDRB).

CONSIDERATION OF EVIDENCE:

1.  His military records show he enlisted in the Pennsylvania Army National Guard (PAARNG) in pay grade E-5 on 4 February 2004, for 2 years, with prior enlisted service in the Regular Army.  On 6 February 2007, he extended his enlistment by 3 years.  He entered on active duty on 24 February 2008.  

2.  On 2 April 2008, he was issued a 20-Year Letter notifying him that he completed the required years of service.  

3.  On 8 April 2008, The Adjutant General, PAARNG, issued orders promoting him to pay grade E-7 on 8 April 2008.  The orders stated the promotion incurred a service remaining obligation of 2 years from the date of promotion in accordance with Army Regulation 600-8-19 (Enlisted Promotions and Reductions), paragraph 7-8c.  The individual must fulfill the service remaining obligation in the ARNG or be separated in the next lower grade, unless granted an exception by the Chief, National Guard Bureau (CNGB).

4.  His ARNG Current Annual Statement, dated 11 March 2009, shows he had completed 21 years, 4 months, and 17 days of creditable service for retired pay as of 4 February 2009.  

5.  On 9 June 2009, The Adjutant General, PAARNG, issued orders releasing him from active duty effective 31 July 2009 and placing him on the Retired List in pay grade E-7 on 1 August 2009.

6.  On 17 June 2009, The Adjutant General, PAARNG, issued orders amending his retired grade from SFC/E-7 to staff sergeant (SSG)/E-6.

7.  He was honorably released from active duty on 31 July 2009, for sufficient service for retirement.  He was issued a DD Form 214 showing his rank/grade as SFC/E-7, effective 8 April 2008.  

8.  On 7 August 2009, The Adjutant General, PAARNG, issued orders administratively reducing him from pay grade E-7 to E-6 on 30 July 2009, under the provisions of Army Regulation 600-8-19, paragraph 10-21f.  The orders stated he did not satisfactorily hold the rank/grade for the required service obligation for his promotion. 

9.  On 7 August 2009, The Adjutant General, PAARNG, issued orders discharging him from the ARNG and placing him on the Retired List in pay grade E-6.

10.  On 15 April 2010, the AGDRB returned his petition without action because the Board did not have jurisdiction under the provisions of Title 10, United States Code 3964.  

11.  Army Regulation 600-8-19, paragraph 7-8c specifies individuals who accept promotions will fulfill their service remaining obligations in the ARNG.  Soldiers who voluntarily transfer to the Retired Reserve will be separated in the lower grade.  Those who do not meet their service remaining obligation will be administratively reduced without board action or appeal on the date separated unless granted an exception to policy by the CNGB for the good of the service.  If a Soldier submits a request for voluntary retirement before fulfilling his/her service remaining obligation in the ARNG, the CNGB can deny the request, or accept the request and waive the service remaining requirements if a waiver is in the best interest of the Army or when substantial hardship would result.  

12.  Army Regulation 600-8-19, paragraph 10-21f specifies ARNG Soldiers will be reduced in rank without board action or appeal if they fail to meet the service remaining requirement.  

13.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), Chapter 12, sets forth the basic authority for the separation of enlisted personnel because of length of service.  It states retirement normally will be in the regular grade the Soldier holds on the date of retirement, as prescribed in Title 10 of the United States Code, section 3961, which provides the legal authority for retirement grades.  Paragraph 12-3 specifies the AGDRB in accordance with Army Regulation 15-80 will make determination of the highest grade served in satisfactorily.  

14.  Title 10, United States Code, section 3961 provides that each retired member of the Army, unless entitled to a higher grade under some other provision of law, retires in the regular grade that he/she holds on the date of his/her retirement.  Section 3963 provides that a Reserve enlisted member retired for 20 to 30 years of service, who was previously administratively reduced in grade not as a result of the member’s own misconduct, shall be retired in the highest enlisted grade in which the member served on active duty/full-time ARNG satisfactorily, as determined by the Secretary of the Army.

DISCUSSION AND CONCLUSIONS:

1.  The evidence confirms that he entered on active duty on 24 February 2004.
On 8 April 2008, the PAARNG issued orders promoting him to the rank and pay grade of SFC/E-7.  The orders advised that acceptance of this promotion incurred a 2 year service remaining obligation.  On 9 June 2009, the PAARNG issued orders releasing him from active duty effective 31 July 2009 with placement ion the Retired List in pay grade E-7.  On 17 June 2009, the PAARNG issued amended orders for his placement on the Retired List in pay grade E-6.  He was released from active in pay grade E-7 for sufficient service for retirement on 31 July 2009.  On 7 August 2009, the PAARNG issued orders administratively reducing him to pay grade E-6 effective 30 July 2009, because he had not satisfactorily held the grade of E-7 for the required 2 year service obligation.
2.  The evidence shows he served satisfactorily in pay grade E-7 from 8 April 2008 to 30 July 2009, a period of 1 year, 3 months, and 23 days.  Title 10, United States Code, section 3963 provides for retirement in higher grade satisfactorily held by an ARNG member previously administratively reduced not as a result of the member’s own misconduct as determined by the Secretary of the Army.  

3.  Although there is no evidence to show he was denied a waiver to be retained on active duty to complete his 2 year obligation or any reason why he was not retained, it may be presumed that he could have been granted a waiver or retained.  Therefore, as a matter of equity in this case, he is entitled to be placed on the retired list in pay grade E-7 based on his satisfactory service in that grade and under the provisions of Title 10, section 3963.  

4.  In view of the foregoing, the applicant’s PAARNG and Department of the Army records should be corrected as recommended below.

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 State Army National Guard and Department of the Army records of the individual concerned be corrected by showing he was honorably released from active duty on 31 July 2009 and placed on the Retired List in the rank/grade of SFC/E-7 on 
1 August 2009, with entitlement to any back pay in the higher retired grade on that date.



      _______ _   _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)                                         AR20090020453



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ABCMR Record of Proceedings (cont)                                         AR20090020453



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