IN THE CASE OF:
BOARD DATE: 4 May 2011
DOCKET NUMBER: AR20100025041
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, in effect, correction of his record to show he is entitled to retired pay at the highest grade he held.
2. He states, in effect, he was reduced from sergeant first class (SFC)/E-7 to staff sergeant (SSG)/E-6 at his request in 1985. He believes his retired grade should be adjusted from E-6 to E-7 and he should be paid backpay to 1 September 2004 when he reached age 60.
3. He provides a memorandum from the Virginia Army National Guard (VAARNG) and orders confirming he was reduced to SSG/E-6.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. After a period of active duty and reserve service in the U.S. Air Force, the applicant enlisted in VAARNG on 7 December 1974. On 9 October 1990, he was honorably discharged from the VAARNG as a SSG/E-6 and transferred to the U.S. Army Reserve Control Group (Retired). His NGB Form 22 (Report of Separation and Record of Service) shows he completed 21 years, 10 months, and 3 days of total service for pay.
3. Item 18 of his DA Form 2-1 (Personnel Qualification Record) shows he was promoted to platoon sergeant (PSG)/E-7 on 21 June 1980 and reduced to SSG/E-6 effective 19 February 1985. (At the time, PSG was commonly used to refer to the rank SFC.)
4. DA Forms 2166-6 (Enlisted Evaluation Report) in his record show he received consistently high ratings for his professionalism and performance while serving as an SFC.
5. Orders 16-2, issued by Headquarters, 224th Field Artillery Brigade, on 19 February 1985, show he was administratively reduced from PSG/E-7 to SSG/E-6 effective 19 February 1985 per his request.
6. Orders P08-486895, issued by the U.S. Army Reserve Personnel Command on 18 August 2004, placed him on the Retired List effective 29 September 2004 and confirmed he was authorized retired pay under Title 10, United States Code, Section 12731. The orders show his retired grade as SSG/E-6.
7. 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 during his or her entire period of service. If the Soldier was transferred to the Retired Reserve or discharged on or after 25 February 1975, retired grade will be the highest grade which a commissioned officer or enlisted Soldier held while on active duty or in an active reserve status for at least 185 days or six calendar months. 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 evidence of record shows the applicant was promoted to SFC/E-7 on 21 June 1980 and had served satisfactorily in that rank/grade for over 4 years when his request for reduction was approved effective 19 February 1985.
2. In connection with a non-regular retirement, enlisted members are entitled to receive retired pay in the highest grade held satisfactorily for at least 185 days or six calendar months while on active duty or in an active reserve status. The evidence of record in this case confirms the applicants service in the highest grade he held (pay grade E-7) was satisfactory and that he held the grade for well over 6 months.
3. In view of the facts of this case, his record should be corrected to show he was placed on the retired list in rank/pay grade SFC/E-7 and authorized to receive non-regular retired pay based on that pay grade effective 29 September 2004, the date he turned age 60 and became eligible to receive retired pay. Further, it would be appropriate to provide him all back retired pay due 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 that the evidence presented was 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 showing his retired grade was established as SFC/E-7 and he was authorized to receive retired pay in that grade as of 29 September 2004, the date he reached age 60 and began receiving retired pay; and by providing him all back 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) AR20100025041
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ABCMR Record of Proceedings (cont) AR20100025041
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