IN THE CASE OF:	

		BOARD DATE:	  30 September 2010

		DOCKET NUMBER:  AR20100010914 


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 his rank/grade of sergeant major (SGM)/E-9 be restored.  

2.  The applicant states he went before a promotion board on 3 December 1973 and he was found qualified for promotion to SGM/E-9.  He was promoted on 
8 December 1973.  However, 11 days later, on 18 December 1973, he was reduced back to master sergeant (MSG)/E-8.  He was in the hospital on that date.  His chain of command stated that he requested a voluntary reduction and transferred him back to his original unit without receiving any notification.

3.  The applicant provides the following documents:

* Honorable Discharge Certificate
* WD AGO Form 53-55 (Enlisted Record and Report of Separation)
* Optional Form 41 
* Recommendation for promotion memorandum
* Special Orders Number 148
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* DA Form 2-1 (Personnel Qualification Record)
* U.S. Army Reserve (USAR) Form 4651-R (Request for Reserve Component Assignment or Attachment)



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's records show he was born on 7 December 1922.  He was inducted into the Army of the United States on 15 February 1943 and entered active duty on 22 February 1943.  He served through multiple campaigns during World War II as a demolitions specialist and he was honorably discharged on      8 December 1945.

3.  He enlisted in the Missouri Army National Guard (MOARNG) on 26 May 1947 and served as an infantry sergeant.  He was discharged from the ARNG on 
10 April 1953 and transferred to the U.S. Air Force where he remained until 6 November 1955.

4.  He again enlisted in the MOARNG on 7 November 1955 and served through multiple extensions or reenlistments in various staff and leadership positions.  He attained the rank/grade of first sergeant (1SG)/E-8.  He was assigned to Headquarters and Headquarters Detachment (HHD), 880th Engineer Battalion.

5.  On 20 March 1968, the NGB issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).

6.  On 19 October 1973, he submitted a statement wherein he agreed to transfer to Headquarters and Headquarters Company (HHC), 135th Engineer Group, for the sole purpose of being promoted to SGM/E-9 for retirement purposes and that after being promoted, he would request retirement from the ARNG effective 28 February 1974.  

7.  On 26 November 1973, Headquarters, Office of the Adjutant General, MOARNG, published Special Orders Number 141 transferring him from HHD, 880th Engineer Battalion to HHC, 135th Engineer Group effective 28 November 1973. 
8.  On 3 December 1973, he appeared before an enlisted member selection board that convened by authority of The Adjutant General, MOARNG, to determine his eligibility for promotion to SGM/E-9.  The board found him fully qualified and recommended promotion effective 8 December 1973.

9.  On 4 December 1973, Headquarters, MOARNG, Office of the Adjutant General, published Special Orders Number 144 promoting him to SGM/E-9 under the authority of paragraph 3a of National Guard Regulation (NGR) 624-200 (Appointment and Reductions of Enlisted Personnel) effective 8 December 1973. 

10.  On 19 December 1973, Headquarters, MOARNG, Office of the Adjutant General, published Special Orders Number 148:

   a.  Reducing the applicant to MSG/E-8 under the authority of paragraph 4a of NGR 624-200 effective 18 December 1973 by reason of voluntary reduction – without prejudice.

   b.  Transferring him from HHC, 135th Engineer Group, MOARNG, back to HHD, 880th Engineer Battalion effective 18 December 1973.

11.  His records show he was hospitalized from 6 February through 2 March 1974. 

12.  He was honorably discharged from the ARNG on 20 March 1974 in the rank/grade of MSG/E-8. 

13.  On 8 November 1975, by memorandum, the commander, Batter C, 1st Battalion, Target Acquisition (TA), 128th Field Artillery (FA), MOARNG, interviewed the applicant and requested that he be granted a waiver for enlistment in the grade of 1SG/E-8.  His request was ultimately disapproved for enlistment as an E-8 but approved for enlistment as a sergeant first class (SFC)/E-7. 

14.  He enlisted in the MOARNG on 3 December 1975 in the rank/grade of SFC/E-7 and was assigned to Battery C, 1st Battalion (TA), 128th FA. 

15.  He also executed an extension in the ARNG and was reassigned to HHD, 204th Military Police Battalion, MOARNG. 

16.  He was honorably discharged from the ARNG on 9 December 1979 in the rank/grade of SFC/E-7 and he was transferred to the USAR Control Group.


17.  On 1 July 1980, he was promoted to MSG/E-8 in the USAR.

18.  On 22 November 1982, he submitted an application for retirement and on 7 December 1982 on his 60th birthday he was honorably retired and placed on the retired list in his retired rank/grade of MSG/E-8.

19.  On 3 January 1983, he petitioned the ABCMR for correction of his records to show his grade on the retired list as SGM/E-9, the highest grade held. 

20.  On 11 July 1984, the ABCMR denied his request.  The policy for grade determination for computation of retired pay required an enlisted member to serve in the higher grade for at least 185 days to qualify for retirement in that grade.  He has only served as a SGM for 11 days.  

21.  NGR 624-200 (Appointment and Reduction of Enlisted Personnel), in effect at the time, governed the temporary appointment of enlisted personnel of the ARNG to pay grades E-4 through E-9 made against periodic temporary appointment quota allocations issued by the NGB.  The regulation stated that control would be exercised by all appointment authorities to ensure that appointments did not exceed local pay grade vacancies, major command ceilings, or allotted quotas.

22.  NGR 600-200 (Enlisted Personnel Management), establishes the standards, policies and procedures for the management of ARNG enlisted Soldiers and specifically the policy for enlisted promotion, appointment, and reduction.  It provides that a Soldier may volunteer for reduction to any lower rank in order to obtain a benefit or for personal preference.

23.  Army Regulation 135-180 (Qualifying Service for Retired pay Non-Regular Service) implements statutory authorities governing the granting of “retired pay” to Soldiers and former Reserve Components Soldiers.  The regulation in effect at the time stated that if a member was transferred to the Retired Reserve prior to 25 February 1975, the retired grade will be that which the member held at the time of the transfer to the Retired Reserve unless the member held a higher grade for at least 185 days. 

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was selected for promotion to SGM/E-9 on 3 December 1973 and he was promoted as such on 8 December 1973.  He was subsequently reassigned to the 135th Engineer Group.  However, 11 days later, on 18 December 1973, he was reduced to MSG/E-8 and reassigned to his former unit, the 880th Engineer Battalion of the MOARNG.
2.  At this point I time, it is unclear why he requested voluntary reduction at the time.  Generally speaking, one of the reasons for being voluntarily reduced is a declination of a position of the higher grade or to voluntarily accept a position in the lower grade. When a member declines the higher position that member is in effect voluntarily being reduced.  

3.  The available records show he was hospitalized from February to March 1974.  There is no indication of what significance his illness/hospitalization during this period had on his voluntary reduction 2 months earlier.  

4.  By law, in connection with a non-regular retirement, enlisted members are entitled to receive retired pay in the highest grade held satisfactorily.  However, in his case, the applicant held SGM/E-9 rank/grade only 11 day which does not satisfy the requirement to hold this rank/grade for at least 185 days.  

5.  In view of the facts of this case, he is not entitled to the 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)                                         AR20100010914



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ABCMR Record of Proceedings (cont)                                         AR20100010914



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