BOARD DATE:	  22 March 2011

		DOCKET NUMBER:  AR20100019224 


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 in the rank and pay grade of sergeant first class (SFC)/E-7.

2.  He states he held the rank of SFC over 13 years and served honorably.  On June 2009, he received an Article 15 and was reduced to the rank and pay grade of sergeant (SGT)/E-5.  Additionally, he states he never received a bad noncommissioned officer evaluation report (NCOER) during the time he served as an SFC and he was told he would retire as an SFC, but it did not occur.

3.  He provides:

* a DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) 
* an Arizona Nonjudicial Punishment (AZNJP) Form 3 (Nonjudicial Punishment (NJP) Election of Rights)
* three sets of orders from the Arizona Army National Guard (AZARNG)
* a letter addressed to the Army Review Boards Agency (ARBA)

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the AZARNG on 11 December 1975.  He successfully completed the training requirements, and he was awarded military 

occupational specialty (MOS) 95B (Military Police).  He was later awarded MOS 55R (Ammunition Storage Specialist), MOS 75B (Personnel Administration Specialist), and MOS 42A (Human Resources Specialist).  On 11 January 1985, he was honorably discharged from the AZARNG.

2.  After a break in service, on 24 October 1988, he again enlisted in the AZARNG.  On 26 March 1991, he entered active duty in a full-time Active Guard Reserve (AGR) status.

3.  Item 18 (Appointments and Reductions) of his DA Form 2-1 (Personnel Qualification Record) shows, in pertinent part, he was promoted to:

* SGT on 24 October 1988
* staff sergeant (SSG)/E-6 on 17 January 1996
* SFC on 6 September 1997

4.  On 5 January 2007, he accepted NJP under Article 26, Arizona Code of Military Justice (ACMJ).  The document does not explain why he received a field grade Article 15; however, his punishment consisted of paying $7,000.00 in restitution, and he was given a suspended reduction to the rank of SSG.

5.  On 7 June 2009, he accepted NJP under Article 26, ACMJ, for presenting a false claim to the U.S. Government.  His punishment consisted of a forfeiture of
14 days pay and reduction to the rank and grade of SGT/E-5.  He elected not to appeal the punishment imposed.

6.  Orders 159-607, dated 8 June 2009 issued by the AZARNG show he was reduced in rank from SFC to SGT for misconduct effective 7 June 2009.

7.  Orders 344-608 from AZARNG, dated 10 December 2009, show he was released from active duty effective 31 January 2010 based on sufficient service for retirement and transferred to the U. S. Army Reserve (USAR) Control Group (Retired) effective 1 February 2010 in the retired rank and pay grade of SGT/E-5. At the time, he had completed 20 years, 7 months, and 23 days of creditable active serve.

8.  The applicant's DD Form 214, Item 4a (Grade, Rate, or Rank) for the period ending 31 January 2010 shows the entry "SGT,” item 4b (Pay Grade) shows the entry “E05,” and Item 12h (Effective Date of Pay Grade) erroneously shows
2 June 2009 instead of 7 June 2009.


9.  His military personnel records contain an NGB Form 23B (Army National Guard Retirement Points History Statement), prepared on 28 April 2010, that shows he completed 30 years, 3 months, and 7 days of service for retired pay and, in pertinent part, contains the entry “Highest Grade Held E07.”

10.  Title 10 of the United States Code, section 3964, provides the legal authority for advancement on the Retired List.  It states, in pertinent part, that retired Soldiers are entitled to, when their active service plus service on the retired list totals 30 years, to be advanced on the Retired List to the highest grade they held and in which they satisfactorily served while on active duty as determined by the Secretary of the Army.  

11.  Army Regulation 15-80 (Army Grade Determination Review Board and Grade Determinations) establishes policies, procedures, and responsibilities of the Army Grade Determination Review Board (AGDRB) and other organizations delegated authority to make grade determinations on behalf of the Secretary of the Army (SA).  Paragraph 2-4 (Grade Determination Considerations) outlines grade determination considerations.  It states, in pertinent part, that service in a higher grade will normally be considered unsatisfactory if reversion to a lower grade was expressly for prejudice or cause; owing to misconduct; caused by nonjudicial punishment pursuant to UCMJ, Article 15; or the result of the sentence of a court-martial.  It also states that service will be considered unsatisfactory if there is sufficient unfavorable information to establish that the Soldier's service in the grade in question was unsatisfactory.

12.  Army Regulation 15-80, paragraph 2-5 (Unsatisfactory Service) of this Army regulation provides, in pertinent part, that service in the highest grade or an intermediate grade normally will be considered to have been unsatisfactory when there is sufficient unfavorable information to establish that the Soldier's service in the grade in question was unsatisfactory.

13.  Department of Defense Financial Management Regulation (FMR), 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, in pertinent part, 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.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his military records should be corrected to show he retired in the rank and pay grade of SFC/E-7 because prior to receiving NJP he honorably held the rank of SFC for over 13 years.  

2.  His request for advancement on the Retired List was carefully considered.  However, by law and regulation, advancement is only authorized to a grade in which the member's service was determined to be satisfactory.  Service is normally considered unsatisfactory when reversion to a lower grade is the result of an Article 15.  It is also considered unsatisfactory when there is sufficient unfavorable information to establish that the Soldier's service in the grade in question was unsatisfactory.  

3.  Evidence of record shows he served on active duty in a full-time AGR status from 26 March 1991 to 31 January 2010.  He was promoted to the rank of SFC on 6 September 1997.  He accepted an Article 15 on 5 January 2007 and he received a suspended reduction to the rank of SSG.  On 7 June 2009, he accepted a second NJP for misconduct and he was reduced from SFC to SGT, effective on the same date.  

4.  His record confirms his reduction from the rank of SFC was the result of him accepting an Article 15 for committing the offense for which he was punished while he held the rank of SFC.  Therefore, his service in the rank of SFC was unsatisfactory, and his advancement to a rank above SGT on the Retired List would not be appropriate.  As a result, it is concluded the requested relief is not warranted in this case at this time.  However, after his 30-year mark on the Retired List he has the option to request to be advanced on the Retired List by the AGDRB. 

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)                                         AR20100019224



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ABCMR Record of Proceedings (cont)                                         AR20100019224



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