IN THE CASE OF:
BOARD DATE: 21 July 2011
DOCKET NUMBER: AR20100025067
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 retired rank and pay grade to reflect first sergeant (1SG)/E-8 and adjustment of his retired pay retroactive to his effective date of retirement on 28 October 2003.
2. The applicant states he was promoted to master sergeant (MSG)/E-8 on 23 July 1987, was laterally appointed to 1SG/E-8, and served in that rank and pay grade until he accepted a voluntary reduction to sergeant first class (SFC)/
E-7 on 1 October 1991.
3. The applicant provides copies of his 23 July 1987 promotion certificate, 12 February 1989 reenlistment contract, 26 April 1991 lateral appointment orders, 1 October 1991 reduction orders, leave and earnings statements for the period 1 January 1988 through 30 September 1991, and eight documents from his official records showing his rank and pay grade of MSG/E-8 or 1SG/E-8.
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 applicant's 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 applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant initially entered military service in the Army National Guard on 15 January 1962. He had two breaks in service prior to enlisting in the Oregon Army National Guard in 1979.
3. On 17 May 1982, the applicant enlisted in the U.S. Army Reserve in the rank and pay grade of SFC/E-7.
4. On 23 July 1987, he was promoted to MSG/E-8.
5. On 26 April 1991, the applicant was laterally appointed to 1SG/E-8 in his troop program unit (TPU).
6. On 2 October 1991, the applicant was voluntarily reduced to SFC/E-7 in accordance with Army Regulation 140-158 (Army Reserve Personnel Classification, Promotion, and Reduction), paragraph 7-12(3)(b), then in effect.
7. His record contains orders showing he served on active duty for training or active duty for special work as a MSG/E-8 or 1SG/E-8 from 1987 through 1991.
8. Effective 13 December 1994, he was reassigned from his TPU to the U.S. Army Reserve Control Group (Reinforcement).
9. U.S. Army Human Resources Command Orders PO7-925205, dated 24 July 2010, retired the applicant effective 28 October 2003 in the grade and pay grade of SFC/E-7.
10. Army Regulation 140-158, paragraph 7-12(3)(b), provided the regulatory authority for a Soldier to voluntarily request a reduction in rank to accept an existing position in a TPU.
11. 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:
The applicant served in the positions as both MSG/E-8 and 1SG/E-8 before accepting a voluntary reduction in grade to accept an established position in a new TPU. In as much as he is shown to have successfully served as a 1SG/E-8, it is appropriate to show his retired rank and pay grade as 1SG/E-8.
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:
a. amending U.S. Army Human Resources Command Orders PO7-925205, dated 24 July 2010, to show the applicant was placed on the Retired List in the rank and pay grade of 1SG/E-8 and
b. paying 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) AR20100025067
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ABCMR Record of Proceedings (cont) AR20100025067
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