IN THE CASE OF:
BOARD DATE: 12 May 2011
DOCKET NUMBER: AR20100021964
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 highest rank/grade he held, which was sergeant (SGT)/E-5.
2. The applicant states, in effect, to his understanding he should be paid for the highest grade he held, SGT/E-5, instead of specialist (SPC)/E-4.
3. The applicant provides his DD Form 2 (U.S. Uniformed Services Identification Card) (U.S. Army Retired).
CONSIDERATION OF EVIDENCE:
1. The applicant's records show he was inducted into the Army of the United States on 17 April 1969.
2. He was honorably released from active duty on 3 November 1970 and was transferred to the U.S. Army Reserve (USAR) (Annual Training). The DD Form 214 he was issued shows he completed a total of 1 year, 6 months, and 17 days of creditable active service. His DD Form 214 also shows the following entries:
* Item 5a (Grade, Rate, or Rank) SGT
* Item 5b (Pay Grade) E-5
* Item 6 (Date of Rank) 8 September 1970
3. Item 26 (Military Service) of a DD Form 1966 (Application for Enlistment Armed Forces of the United States) lists his pay grade, service and component, date of entry, and date of his discharge as:
* E-3 U.S. Army 17 April 1969 3 November 1970
* E-3 USAR 4 November 1970 22 June 1973
* E-4 Oklahoma Army National Guard (OKARNG) 23 June 1973 14 May 1976
4. He reenlisted in the OKARNG on 12 March 1977 in the rank/grade of
SPC/E-4.
5. Item 18 (Appointments and Reductions) of his DA Form 2-1 (Personnel Qualification Record) shows his grade and date of rank as:
* SPC 760403
* SGT 840801
* SPC 911224
6. On 24 December 1990, the battalion commander administered nonjudicial punishment (NJP) against the applicant under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave and missing movement through neglect. As a result, his punishment included a reduction to E-4.
7. On 26 February 1993, OKARNG issued him a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).
8. On 6 May 1993, OKARNG published Orders 101-83 discharging him from the ARNG in the rank/grade of SPC/E-4 and transferring him to the Retired Reserve effective 30 April 1993.
9. The National Guard Bureau Form 22 (Report of Separation and Record of Service) he was issued shows he completed 23 years, 2 months, and 17 days of total service for pay. Items 5a (Rank) and 5b (Pay Grade) of this form show the entries SPC and E-4 and item 6 (Date of Rank) shows the entry "90 12 24."
10. On 2 September 2010, U.S. Army Human Resources Command, St. Louis, MO, published Orders P09-926530 retiring the applicant and placing him on the Retired List in his retired rank/grade of SPC/E-4 effective 15 May 2009, the date he turned age 60.
11. He provides a DD Form 2 issued on 18 May 2009 which shows his rank/pay grade as SGT/E-5.
12. 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.
13. Army Regulation 135-180 (Qualifying Service for Retired Pay Nonregular Service) states 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, UCMJ, 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. 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.
In the applicant's case, he did not satisfactorily serve in the rank/grade of
SGT/E-5. His records show he accepted NJP under the provisions of Article 15, UCMJ, that resulted in his reduction to SPC/E-4.
2. Although he provides a DD Form 2 which shows his rank/pay grade as SGT/E-5 his record is void of any evidence he was promoted to SGT/E-5 following his reduction to SPC/E-4.
3. 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 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) AR20100021964
4
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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