IN THE CASE OF:	  

		BOARD DATE:	  26 October 2010

		DOCKET NUMBER:  AR20100013481 


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 correction of his records to show he retired from the South Dakota Army National Guard (SDARNG) in the rank/grade of staff sergeant (SSG)/E-6 instead of sergeant (SGT)/E-5.

2.  The applicant states he held the rank of SSG/E-6 for a long enough period of time to receive retirement benefits as an E-6 instead of an E-5.

3.  The applicant provides the following documents:

* Special Orders Number 11 promoting him to SSG/E-6
* Retiree Account Statement
* Summary of Retired Pay Account

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was born on 23 July 1947.

2.  He enlisted in the SDARNG for a period of 6 years on 31 January 1966.  He subsequently entered active duty for training, completed basic combat and advanced individual training, and was awarded military occupational specialty (MOS) 12A (Pioneer).  He was honorably released from active duty on 25 June 1967 to the control of his ARNG unit.

3.  On 20 September 1967, the SDARNG ordered the applicant's transfer to the 137th Engineer Battalion, Wagner, SD.

4.  His records further show he was awarded MOS 64C (Motor Transport Operator) in the rank/grade of SGT on 25 March 1971 and that he was assigned to the 1743rd Transportation Company, Wagner, SD.

5.  On 12 April 1971, Headquarters and Headquarters Detachment, 137th Engineer Battalion, SDARNG, published Special Orders Number 11 announcing the applicant's promotion to SSG/E-6 in accordance with National Guard Regulation 624-200 (Appointments and Reductions of Enlisted Personnel).

6.  He was honorably discharged from the SDARNG on 25 March 1974.  The National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) he was issued shows he completed 8 years, 1 month, and 24 days of service for pay and the highest grade he held was that of SSG.

7.  After a 12-month break in service, he again enlisted in the SDARNG in the rank/grade of SSG/E-6 for a period of 1 year on 25 March 1975.  He was assigned in MOS 51N (Water Treatment Specialist) to the 854th Engineer Company, Wagner, SD.

8.  On 16 March 1976 and 18 February 1977, he extended his March 1975 enlistment to a period of 2 years and 8 years, respectively.  His expiration of term of service date was established as 24 March 1983.

9.  His Enlisted Efficiency Reports from March 1975 through September 1978 show he served satisfactorily in various capacities as an SSG with a date of rank of 25 March 1975, the date of his enlistment.

10.  On 25 November 1978, the SDARNG published Orders 170-1 relieving him from assignment to the 854th Engineer Company and transferring him to the Inactive National Guard effective 22 November 1978.  The reason is shown as "incompatible occupation."

11.  He was honorably discharged from the SDARNG and as a Reserve of the Army on 24 July 1979.  The NGB Form 22 he was issued shows he completed a total of 12 years, 3 months, and 19 days of service for pay.  This form also shows his rank and grade as SSG/E-6 and his effective date of rank as 25 March 1975.

12.  His NGB Form 23A (ARNG Current Annual Statement) shows he had no military status between 25 July 1979 and 30 September 1983.

13.  His records show that after another break in service, he enlisted in the SDARNG in the rank/grade of SGT/E-5 on 1 October 1983.  He subsequently served through a 3-year and a 6-year extension of this enlistment in MOS 75B (Personnel Administration Specialist) with the 1007th Quartermaster Company and in MOS 12C (Bridge Crewman) with the 854th Engineer Company.

14.  On 2 September 1992, the SDARNG issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).

15.  On 12 September 1992, the applicant's immediate commander initiated a Bar to Reenlistment Certificate against him citing his enrollment in the weight control program and Army Physical Fitness Test failure.  The bar was ultimately approved by his senior commander on 29 September 1992.

16.  On 30 November 1993, the SDARNG published Orders 226-002 discharging him from the ARNG in the rank/grade of SGT/E-5 and honorably transferring him to the Retired Reserve.

17.  The NGB Form 22 he was issued for this period of service shows he completed 22 years, 5 months, and 25 days of total service for pay.  Item 5a (Rank) and item 5b (Pay Grade) of this form show the entries SGT and E-5 and item 6 (Date of Rank) shows the entry "93  09  30."

18.  On 12 September 2007, the U.S. Army Human Resources Command, St. Louis, MO, published Orders P09-791175 retiring the applicant and placing him on the Retired List in his retired rank/grade of SGT/E-5 effective 23 July 2007, the date he turned age 60, in accordance with Title 10, U.S. Code, section 12731.

19.  The applicant submitted a copy of his Retiree Account Statement for October 2007 that shows his retired pay is that of an E-5.

20.  Title 10, U.S. Code, section 12731, states that a person is entitled upon application to retired pay if the person is at least 60 years of age and has performed at least 20 years of service as computed under section 12732 of this title.

21.  Title 10, U.S. Code, section 3963 (Highest grade held satisfactorily:  Reserve enlisted members reduced in grade not as a result of the member's misconduct), provides that a Reserve enlisted member of the Army described in subsection b who is retired under section 3914 of this title shall be retired in the highest enlisted grade in which the member served on active duty satisfactorily (or, in the case of a member of the ARNG, in which the member served on Full-Time National Guard (FTNG) duty satisfactorily), as determined by the Secretary of the Army.  Subsection b applies to a Reserve enlisted member who:  (1) at the time of retirement is serving on active duty (or, in the case of a member of the ARNG, on FTNG duty) in a grade lower than the highest enlisted grade held by the member while on active duty (or FTNG duty) and (2) was previously administratively reduced in grade not as a result of the member's own misconduct, as determined by the Secretary of the Army.  This section applies to Reserve enlisted members who are retired under section 3914 of this title after 30 September 1996.

22.  Department of Defense Financial Management Regulation, volume 7B (Military Pay Policy and Procedures-Retired Pay), chapter 1 (Initial Entitlements-Retirements), section 0105 (Rank and Pay Grade), paragraph 010501A (General Determinations) states that unless entitled to a higher grade under some other provision of law, those Regular and Reserve members who retire other than for disability, will retire in the Regular or Reserve grade they hold on the date of retirement.  Paragraph 10503 (Satisfactory Service) provides that the determination as to what constitutes satisfactory service for the purpose of retirement in the highest grade is within the discretionary power of the Secretary of the Military Department concerned.

23.  Army Regulation 135-180 (Army National Guard and Army Reserve Qualifying Service for Retired Pay Nonregular Service) states 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.

24.  Army Regulation 135-180, paragraph 1-4, states that retired pay is pay granted to Soldiers and former Reserve Component 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should have been retired in the rank/grade of SSG/E-6 instead of SGT/E-5.

2.  By law, a person granted retired pay will receive such pay in the highest grade 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 the revision to a lower grade was due to misconduct or court-martial or if there is information in the Soldier's service record to indicate clearly that the highest grade was not served satisfactorily.

3.  In the applicant's case, the evidence of record shows he was promoted to SSG/E-6 on 12 April 1971 and held that grade until his honorable discharge on 25 March 1974.  He also enlisted in the rank/grade of SSG/E-6 on 25 March 1974 and again held that grade until his honorable discharge on 24 July 1979.  Nothing in his records shows he was reduced for misconduct or any other negative/derogatory reason.

4.  Therefore, he should be entitled to correction of his records to show he retired in the rank/grade of SSG/E-6 on his 60th birthday and restoration of all retired pay as a result of this correction.

BOARD VOTE:

____X___  ____X___  ___X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is 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 by:

* amending Orders P09-791175 issued by U.S. Army Human Resources Command on 12 September 2007 to show his retired grade as staff sergeant/E-6 effective 23 July 2007
* 
auditing his pay records and paying him all retired pay due as a result of this correction



      _____________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)                                         AR20100013481



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ABCMR Record of Proceedings (cont)                                         AR20100013481



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