BOARD DATE:	  28 October 2010

		DOCKET NUMBER:  AR20100013672 


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 Army National Guard (ARNG) in the rank/grade of staff sergeant (SSG)/E-6 instead of sergeant (SGT)/E-5.

2.  The applicant states he joined the ARNG as a SGT/E-5 but got out of the Army as a SSG/E-6.  There was no DD Form 214 (Certificate of Release or Discharge from Active Duty) and there was no SSG slot, so he joined as a SGT.  Nevertheless, he should have retired as a SSG on 6 October 2009 when he turned 60.

3.  The applicant provides a copy of a DA Form 4187 (Personnel Action).

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was born on 6 October 1949.

2.  He enlisted in the Regular Army on 1 October 1974 for a period of 4 years and he held military occupational specialty (MOS) 11E (Armor Crewman).  He subsequently served through a series of extensions or reenlistments, in various positions within and outside the continental United States, including Korea and Germany, in MOS 73C (Finance Specialist).

3.  His records do not contain official orders promoting him to SSG/E-6; however, item 18 (Appointments and Reductions) of his DA Form 2-1 (Personnel Qualification Record - Part II) shows he was promoted to SGT/E-5 on 6 November 1979 and SSG/E-6 on 5 December 1983.

4.  On 17 August 1984, while a SSG, he participated in a unit urinalysis and his urine sample tested positive for marijuana.

5.  On 9 January 1985, the battalion commander administered nonjudicial punishment (NJP) against the applicant under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully using marijuana.  He accepted the NJP, he requested a closed hearing, and he requested a person speak in his behalf.  As a result, his punishment consisted of a reduction to E-5.  Accordingly, he was reduced to SGT/E-5 on 9 January 1985.  He appealed the imposed punishment and he elected not to submit additional matters.  On
17 January 1985, after considering all matters, the next higher level commander denied the applicant's appeal.  On the same day, the applicant acknowledged the action taken on his appeal.

6.  On 15 February 1985, the applicant submitted an appeal of the NJP action to the 1st Cavalry Division commander.  After considering the matters presented in his letter, the division commander (a major general) denied his appeal.

7.  On 19 April 1985, the applicant's immediate commander initiated a DA Form 4126-R (Bar to Reenlistment Certificate) against him citing his Field Grade Article 15 for wrongfully using marijuana as a result of a positive urinalysis.

8.  He was honorably discharged on 11 May 1985 by reason of expiration of term of service.  The DD Form 214 he was issued shows he completed a total of 10 years, 7 months, and 11 days of creditable active service.  It also shows the following entries:

* Items 4a (Grade, Rate or Rank) and 4b (Pay Grade) the entries SGT and E-5
* Item 12h (Effective Date of Pay Grade) "85  01  09"

9.  He enlisted in the Texas ARNG (TXARNG) on 12 May 1985 in the rank/grade of SGT/E-5.  He subsequently served through multiple extensions in MOS 73C, including deployment in support of Operations Desert Shield/Storm.  He was assigned to the 49th Finance Company, Austin, TX.

10.  On 5 December 1994, he submitted a DA Form 4187 requesting transfer to the Retired Reserve, effective 1 February 1995.
11.  On 27 February 1995, the Adjutant General's Department, TXARNG, published Orders 58-137 discharging him from the ARNG in the rank/grade of SGT/E-5 and transferring him to the Retired Reserve. 

12.  The National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) he was issued shows he completed 20 years, 4 months, and 4 days of total service for pay.  Additionally, items 5a (Rank) and 5b (Pay Grade) of this form show the entries SGT and E-5 and item 6 (Date of Rank) shows the entry "85  01  09."

13.  On 28 February 1995, Adjutant General's Department, Austin, TX, issued the applicant a memorandum, Subject:  Notification of Eligibility for Retired Pay at Age 60 (known as the 20-year letter).

14.  On 10 December 2009, the U.S. Army Human Resources Command, St. Louis, MO, published Orders P12-912110 retiring the applicant and placing him on the retired list in his retired rank/grade of SGT/E-5, effective 6 October 2009, the date he turned 60.

15.  The applicant submitted a copy of a DA Form 4187, dated 28 August 1984, wherein he requested a joint domicile assignment with his spouse at the time.  Section I (Personal Identification) of this DA Form 4187 shows his rank as SSG.

16.  Title 10, U.S. Code, section 12731, states 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.

17.  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.


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 regulation, Reserve members of the Armed Forces are entitled to be placed on the Retired List in the highest grade in which they satisfactorily served. However, in the applicant's case, he did not satisfactorily serve in the rank/grade of SSG/E-6.  His records show he tested positive for marijuana during a unit urinalysis and subsequently accepted NJP under the provisions of Article 15 of the UCMJ that resulted in his reduction to SGT/E-5.

3.  He contends that there was no E-6 slot at the time he joined the ARNG, so he joined as an E-5.  Soldiers routinely take an administrative reduction in grade because a unit to which he or she may be transferring to do not have an open slot for the higher grade.  However, the applicant was discharged from the Regular Army as a SGT/E-5 on 11 May 1985.  Therefore, whether an E-6 slot was available or not on the date he enlisted in the ARNG is not relevant in this case.

4.  In view of the foregoing evidence, 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)                                         AR20100013672



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ABCMR Record of Proceedings (cont)                                         AR20100013672



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