IN THE CASE OF:	  

		BOARD DATE:	  12 January 2011

		DOCKET NUMBER:  AR20100010002 


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, that he be advanced on the retired list to the rank of master sergeant (MSG)/E-8.

2.  He states that he qualifies for advancement on the retired list to the rank of MSG/E-8.  

3.  He provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 14 August 2003
* three orders from Headquarters, 100th Division (IT)
* two orders from Headquarters, U.S. Army Armor Center and Fort Knox 
* Headquarters, 85th Division (Training Support) Orders 
* DD Form 4/1 (Enlistment/Reenlistment Document Armed Forces of the United States), dated 6 March 2004
* Army Review Boards Agency memorandum, dated 12 November 2009
* three DA Forms 2166-8 (NCO Evaluation Report) 
* three pages from section 3964 of Title 10, U.S. Code 

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error 

or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant was born on 6 March 1949.  He enlisted in the Regular Army on 16 March 1966.  He was promoted to staff sergeant (SSG)/E-6 on 27 December 1974 and was honorably released from active duty on 21 February 1980.  

3.  After a break in service, he enlisted in the U.S. Army Reserve (USAR) on 
14 September 1987, at the rank of sergeant (SGT)/E-5.  

4.  He received his Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter) on 2 February 2001.

5.  Headquarters, 100th Division (IT) Orders Number 02-236-00005, dated
24 August 2002, promoted the applicant to the rank of MSG/E-8 with an effective date of 1 September 2002.

6.  Headquarters, 100th Division (IT) Orders Number 04-230-00029, dated 
17 August 2004, shows he was reduced from the rank of MSG/E-8 to SSF/E-7 with an effective date of 1 September 2002.  The orders indicate he was reduced in accordance with Army Regulation 140-158, paragraph 7-12(b) (i.e., by reason of the individual’s request for voluntary reduction without prejudice).

7.  Headquarters, 100th Division (IT) Orders Number 06-088-00005, dated 
29 March 2006, show he was discharged from the USAR on 29 March 2006 in the rank of SFC/E-7 and was assigned to the Retired Reserve.  

8.  He reached age 60 on 6 March 2009.

9.  Army Regulation 135-180 (Qualifying Service for Retired Pay Nonregular Service) states, in pertinent part, that a person granted retired pay will receive such pay in the highest grade (temporary or permanent) satisfactorily held by him or her during his or her entire period of service.  Service in the highest grade will not be deemed satisfactory…if it is determined that any of the following factors 
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.

10.  Army Regulation 135-180, paragraph 1-4, states that retired pay is pay granted Soldiers and former Reserve components Soldiers under Title 10, U.S. Code, section 1331 after completion of 20 or more years of qualifying service and upon attaining age 60.  This pay is based on the highest grade satisfactorily held at any time during an individual’s entire period of service, other than in an inactive section of a Reserve component.

11.  Army Regulation 135-180, paragraph 2-11c, states that the Retired Activities Directorate, ARPERCEN [Army Reserve Personnel Center, currently known as the Human Resources Command] will screen each retirement applicant’s record to determine the highest grade held by him or her during his or her military service.  If the Soldier was transferred to the Retired Reserve or discharged on or after 25 February 1975, the retired grade will be that grade which a commissioned officer or enlisted Soldier held while on active duty or in an active reserve status for at least 185 days or six calendar months.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was promoted to MSG/E-8 on 1 September 2002.

2.  The evidence of record shows he was reduced to SFC/E-7 with an effective date of 1 September 2002.  His reduction orders indicate he was administratively reduced to SFC/E-7 as a result of his request.  

3.  Orders were published on 29 March 2006, which show he was transferred to the Retired Reserve in the rank of SFC/E-7.  He turned 60 years of age on           6 March 2009.

4.  Advancement on the retired list to highest grade held is based on satisfactory service in that grade.  The evidence of record indicates the applicant satisfactorily served as an MSG/E-8 for more than 185 days or six calendar months.

5.  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 military records to show he was placed on the retired list in the rank of MSG/E-8.


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 Department of the Army records of the individual concerned be corrected to show he was retired and placed on the retired list on 6 March 2009 in the retired grade of MSG/E-8.

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)                                         AR20100010002





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ABCMR Record of Proceedings (cont)                                         AR20100010002



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