IN THE CASE OF:	  

		BOARD DATE:	  21 October 2010

		DOCKET NUMBER:  AR20100010180 


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 first sergeant (1SG), E-8.

2.  He states his highest grade held was that of 1SG, E-8.  

3.  He provides copies of his:

* Master Sergeant (MSG), E-8, promotion orders
* 1SG Lateral Appointment Orders
* Reduction Orders to pay grade/rank Sergeant First Class (SFC), E-7
* Meritorious Service Medal (MSM) Certificates and a DA Form 638 (Recommendation for Award) of the MSM
* Army National Guard (ARNG) Current Annual Statement
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Retired Reserve Orders
* ARNG Enlistment Document
* Letter for the Army Grade Determination Review Board (AGDRB)

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he enlisted in the Arkansas ARNG (ARARNG) on 2 March 1995, with prior enlisted service.



2.  On 30 December 2006, The Adjutant General (TAG), ARARNG, issued orders promoting him to pay grade E-8 effective 30 December 2006.  The orders stated acceptance of the promotion incurred a 2-year service remaining obligation.  On 30 December 2006, the TAG, ARARNG, also issued orders laterally appointing him to 1SG in military occupational specialty 92A (Automated Logistical Specialist) effective 30 December 2006.  

3.  On 5 January 2008, he was ordered to active duty and entered on active duty in support of Operation Iraqi Freedom (OIF).

4.  On 24 September 2008, he was awarded the MSM for exceptionally meritorious service as 1SG for Headquarters Company during the period 1 October 2007 to 16 March 2008.  On 24 October 2008, he was awarded the MSM for exceptional and meritorious service as the garrison 1SG during OIF from 5 January to 20 December 2008.  

5.  He was honorably released from active duty on 20 January 2009, for completion of required active service.  He was issued a DD Form 214 showing his rank/grade as 1SG/E-8, with an effective date of pay grade of 30 December 2006.  

6.  He reenlisted in the ARARNG, in pay grade E-8, on 30 June 2009, for 3 years.

7.  On 13 July 2009, the TAG, ARARNG, issued orders reducing him from pay grade E-8 to pay grade E-7 effective 13 July 2009, under the provisions of Army Regulation 600-8-19, chapter 10, for voluntary reduction.

8.  A Medical Record - Supplemental Medical Data form, dated 9 January 2010, shows he was found not to have met the retention standards per Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.  It was directed that he be removed from all military duty effective 9 January 2010.  He was entitled, if he chose, to have a non-duty related Physical Evaluation Board (PEB) for a retention ruling only.  It was recommended he appear before a Medical Evaluation Board (MEB).

9.  On 11 January 2010, he elected to be discharged from the ARARNG due to medical reasons and transferred to the Retired Reserve.  He waived his rights to consideration by an MEB/PEB.

10.  On 19 January 2010, the TAG, ARARNG, issued orders discharging him from the ARARNG, in pay grade E-7, effective 31 January 2010, and transferring him to the Retired Reserve.
11.  An ARNG Current Annual Statement, dated 16 January 2010, shows his highest grade held was pay grade E-8.  He was credited with 22 years of creditable service for retired pay.

12.  On 31 January 2010, the ARARNG issued a National Guard Bureau (NGB) Form 22 (National Guard Report of Separation and Record of Service) honorably discharging him from the ARARNG, in pay grade E-7, effective 31 January 2010, under the provisions of National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management), paragraph 6-36c.  He was transferred to the Retired Reserve.  He was credited with 23 years of total service for retired pay.

13.  He provided a copy of his letter to the AGDRB, dated 11 February 2010, wherein he requested to be advanced on the retired list to the highest grade he satisfactorily held while on active duty under the provisions of Title 10, U.S. Code, section 3964.  He stated although he retired on 31 January 2010 because of service-connected disabilities incurred during active service and deemed unfit by the State Fitness for Duty Board in the grade of E-7, he previously held the grade of E-8 while on active duty and he was deployed from 5 January 2008 to 20 January 2009.  His DD Form 214 and awards for this time period reflect he held the grade of E-8.  Also, he held this pay grade from 30 December 2006 until 13 July 2009.  While in the ARNG, he accepted a voluntary administrative reduction (without prejudice) in July 2009 to transfer to a unit where he was a full-time technician.   

14.  On 1 March 2010, the AGDRB returned his petition without action because that board did not have jurisdiction under the provisions of Title 10, U.S. Code, section 3964.

15.  He was reach age 60 on 3 March 2028.

16.  Army Regulation 600-8-19 prescribes the enlisted promotions and reduction function of the military personnel system.  Chapter 10, paragraph 10-19(5)(b), specifies, if approved by the unit commander, a Soldier may volunteer for reduction to any lower grade for reassignment to another position, to another program, or to continue in service.  The promotion authority may then administratively reduce the Soldier without board action.  The date of rank and effective date on reduction is the effective date of reduction.

17.  NGR 600-200, chapter 6, prescribed the policies and procedures for the separation of all ARNG enlisted Soldiers.  Paragraph 6-36c provides for the separation of enlisted personnel from the State ARNG for failure to obtain assignment to a unit vacancy.  The transfer and retirement orders will list the grade which the Solider is authorized on the day before transfer or retirement.  
18.  Army Regulation 135-180 (Army National Guard and Army Reserve-Qualifying Service for Retired Pay Nonregular Service), paragraph 2-1a, indicates that to be eligible for retired pay, an individual does not need to have a military status at the time of application for retired pay and placement on the retired list, but must have (a) attained age 60; (b) completed a minimum of 20 years of qualifying service; and, (c) served the last 8-years of his or her qualifying service as a Reserve Component (RC) Soldier.  The requirement to serve the last 8 years in a RC has since been amended to the last 6-years, and on 26 April 2005, this requirement was reduced to zero (0) years.

19.  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.  The evidence of record shows the ARARNG issued orders promoting him to MSG/E-8 and laterally appointing him to 1SG effective 30 December 2006 and advised him the promotion incurred a 2 year service remaining obligation.  He entered active duty on 5 January 2008 in support of OIF.  He was released from active duty in the rank of 1SG/E-8 on 20 January 2009, due to completion of required service. 

2.  He reenlisted in the ARARNG on 30 June 2009 and on 9 January 2010 he was found unfit for retention and recommended for an MEB.  On 11 January 2010, he waived his right for MEB/PEB evaluations and elected to be transferred to the Retired Reserve.  On 13 July 2009, the ARARNG issued orders administratively reducing him from E-8 to E-7 effective 13 July 2009 by reason of voluntary reduction.  On 31 July 2009, he was honorably discharged from the ARARNG and transferred to the Retired Reserve.

3.  The evidence shows he served satisfactorily as a 1SG/E-8 from 30 December 2006 to 12 July 2009, a period of 2 years, 6 months, and 13 days.  However, based on his age at the time of discharge he was not eligible for placement on the retired list.  He was appropriately transferred to the Retired Reserve in the rank he held at the time, SFC/E-7.  


4.  He will reach age 60 on 3 March 2028.  At that time, he will be eligible to apply for retired pay.  He may also request to be placed on the retired list at the highest grade held at that time.

5.  In view of the foregoing, there is no basis for granting the applicant’s requests.

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)                                         AR20100010180



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ABCMR Record of Proceedings (cont)                                         AR20100010180



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