IN THE CASE OF:	  

		BOARD DATE:	  30 September 2010

		DOCKET NUMBER:  AR20090021378 


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 major (SGM), E-9.

2.  He states he held the grade/rank of SGM, E-9, for over 3 years prior to his retirement.  His date of rank for SGM is 10 December 1999.

3.  He provides copies of the following documents:

* His DA Form 2-1 (Personnel Qualification Record – Part II)
* His DD Form 214 (Certificate of Release or Discharge from Active Duty)
* His letter for the Army Grade Determination Review Board (AGDRB)

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he served in the Regular Army from 10 September 1975 to 9 September 1978 and in the U.S. Army Reserve from 10 September 1978 to 25 June 1979.  He enlisted in the Washington Army National Guard (WAARNG) in pay grade E-4 on 26 June 1979.  He entered active duty on 1 October 1979.

2.  On 13 December 1996, The Adjutant General (TAG), WAARNG, issued orders promoting him to pay grade E-9 effective 10 December 1996.

3.  He successfully completed the Sergeants Major Course on 18 June 1999.

4.  On 29 November 1999, TAG, WAARNG, issued orders reducing him from pay grade E-9 to pay grade E-8 effective 31 December 1999, under the provisions of National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management), paragraphs 11-10c & 11-58d.  The orders also cited the authority of 
NGR 600-200, paragraphs 11-55 or 1156a.

5.  On 6 December 1999, TAG, WAARNG, issued orders releasing him from active duty effective 31 December 1999 and placing him on the Retired List in pay grade E-8 on 1 January 2000.  He was credited with 23 years and 3 months of creditable service and an initial military entry date of 10 September 1975.

6.  He was honorably retired on 31 December 1999.  He was issued a DD Form 214 showing his rank/grade as MSG/E-8, with an effective date of pay grade of 1 May "1997."  He was credited with completion of 23 years and 3 months of total active service.

7.  He provided a copy of his letter to the AGDRB, dated 19 November 2009, wherein he stated although he had worn the E-9 rank and served as a SGM for over 3 years, he had not completed 2 years of service after completing the Sergeants Major Academy, so he was retired as an E-8.  He was advised he would be able to apply after 30 years of service.

8.  On 16 December 2009, the AGDRB returned his petition without action because the Board did not have jurisdiction under the provisions of Title 10, U.S. Code, section 3964.

9.  NGR 600-200, then in effect, chapter 11, prescribed the policies and procedures for promotion, reduction, and restoration for all ARNG enlisted Soldier.  Paragraph 11-10a(2) specified promotions to SGM required completion of a 2-year remaining service obligation from date of promotion.  Soldiers are exempt from that requirement if they are able to serve at least 6 months in the grade, but would be involuntarily separated due to reaching their maximum years of service by the grade or maximum age.  Paragraph 11-10c specified that individuals who accepted promotions would fulfill the service remaining requirement before transfer to the Retired Reserve, voluntary retirement for active duty length of service, or expiration of term of service.  If they did not, they would be separated in the next lower grade unless granted an exception to policy by the Commander, National Guard Bureau, for the good of the service.

10.  NGR 600-200, paragraph 11-58d, specified that Soldiers would be reduced with board action or appeal for failing to meet the service remaining requirement in paragraph 11-10.

11.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), Chapter 12, then in effect, set forth the basic authority for the separation of enlisted personnel because of length of service.  It stated retirement normally would be in the regular grade the Soldier held on the date of retirement, as prescribed in Title 10 of the U.S. Code, section 3961, which provided the legal authority for retirement grades.  Paragraph 12-3 specified the AGDRB in accordance with Army Regulation 15-80 would make determination of the highest grade served in satisfactorily.

12.  Title 10, U.S. 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.  On 13 December 1996, the WAARNG issued orders promoting the applicant to the rank and pay grade of SGM/E-9 effective 10 December 1996.  The orders did not advise that acceptance of this promotion incurred a 2 year service remaining obligation.  He completed the Sergeants Major Course on 18 June 1999.  On 29 November 1999, the WAARNG issued orders administratively reducing him from pay grade E-9 to E-8 with an effective date of 31 December 1999.  The orders cited NGR 600-200, paragraphs 11-10c and 11-58d, fulfillment of service remaining requirement before transfer to Retired Reserve, as the reason for reduction.

2.  The evidence shows he served satisfactorily in pay grade E-9 from 10 December 1996 to 30 December 1999, a period of 3 years and 20 days.  Title 10, U.S. 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.  The applicant may very well have incurred a service obligation upon completing the Sergeants Major Academy.  However, it appears the WAARNG granted him a waiver of any service obligation based on its approval of his retirement.  Therefore, based on the available evidence that he satisfactorily held the grade of E-9 more than 3 years, he was not reduced due to his own misconduct, and his retirement was approved, as a matter of equity in this case he is entitled to be placed on the retired list in pay grade E-9 based on satisfactory service in this grade and under the provisions of Title 10, section 3963.

4.  In view of the foregoing, his WAARNG 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 the State of Washington 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 December 1999 and placed on the Retired List in the rank/grade of SGM/E-9 on 1 January 2000, with entitlement to all back pay in the higher retired grade as of this 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)                                         AR20090021378



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ABCMR Record of Proceedings (cont)                                         AR20090021378



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