IN THE CASE OF:	  

		BOARD DATE:	  28 April 2011

		DOCKET NUMBER:  AR20100025364 


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 his retirement grade be corrected to reflect sergeant major/E-9 (SGM/E-9), the highest grade he held.  

2.  The applicant states he was informed that because he did not have the proper documentation for his reduction, he had to retire as a master sergeant/E-8 (MSG/E-8).  He claims his reduction was the result of an injury he sustained during military service and that he was placed on a permanent profile due to a partial disability.  

3.  The applicant provides the following documents in support of his application:

* Line of Duty Determination
* Physician’s Statement
* SF 600 (Chronological Record of Medical Care)
* DD Form 2697 (Report of Medical Assessment)
* SF 513 (Consultation Sheet)
* United States Army Sergeant’s Major Academy Commandant Letter
* Doctor’s Statement.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows he initially entered the Army National Guard on 5 February 1970. 

2.  On 16 March 1990, while serving in the North Carolina Army National Guard (NCARNG), the applicant was notified he had completed the required qualifying service necessary to qualify for retired pay at age 60 upon application.

3.  On 31 July 1992, the applicant was promoted to MSG/E-8, and on 1 April 1997, he was promoted to SGM/E-9, the highest grade he held,  contingent on completing the sergeant’s major course.  

4.  On 1 June 1999, the applicant was reduced from SGM/E-9 to MSG/E-8 based on his failure to complete the Sergeant’s Major Course (SGMC), which was a condition of his promotion to SGM/E-9.  This reduction was authorized and announced in orders published by the Officer of The Adjutant General, North Carolina Army National Guard, dated 1 June 1999.  

5.  On 5 December 2000, a Medical Evaluation Board (MEB) referred the applicant to a Physical Evaluation Board (PEB) for evaluation of the diagnosed medical conditions of “chondromalacia patella” and “early degenerative changes of left ankle.”

6.  On 7 February 2001, a PEB convened in Washington D.C. to consider the applicant’s case and it found he was fit for duty.  

7.  On 11 June 2001, the United States Army Physical Disability Agency (USAPDA) approved the findings the applicant’s PEB.

8.  On 2 November 2001, the applicant requested discharge from the ARNG and transfer to the Retired Reserve of the United States Army Reserve (USAR); and on 1 December 2001, he was honorably discharged from the ARNG and transferred to the USAR Retired Reserve, in the rank of MSG/E-8.  

9.  On 14 September 2010, the applicant was placed on the Retired List in the grade of MSG/E-8. 

10.  The applicant provides a line of duty determination, dated 16 June 1999, and medical treatment records and doctor’s statements indicating he suffered and was treated for a knee injury he initially sustained as a result of a training accident on 31 May 1999.  



11.  Title 10 of the United States Code, section 12731 provides the legal authority for age and service (non-regular) retirements.  Section 1406 provides the legal authority for establishing the retired pay base for members who first became members before September 8, 1980.  Paragraph (b)(2) contains guidance on non-regular service retirement.  It states, in pertinent part, that in the case of a person who is entitled to retired pay under section 12731 of this title, the retired pay base is the monthly basic pay, determined at the rates applicable on the date when retired pay is granted, of the highest grade held satisfactorily by the person at any time in the Armed Forces.  

12.  National Guard Regulation 600-200 provided ARNG enlisted promotion policy in effect at the time of the applicant’s promotion to SGM/E-9.  It provided for the conditional promotion of Soldiers who had not completed or attended the SGMC.  These soldiers were promoted conditional upon their completion of the SGMC  It provided that Soldiers who fail to attend their scheduled SGMC would be reduced and/or removed from the promotion selection list.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his retired grade should be changed to SGM/E-9 has been carefully considered.  However, there is insufficient evidence to support this claim.  

2.  The evidence of record confirms the applicant’s promotion to SGM/E-9 was contingent on his completing the SGMC.  It further shows he failed to complete the course and as a result was reduced on 1 June 1999.

3.  The record also shows the medical condition referred to by the applicant did not render him unfit for duty, as evidenced by the PEB findings.  His subsequent discharge from the ARNG and transfer to the Retired Reserve was the result of his voluntary request and not based on a disqualifying medical condition.  Therefore, absent any evidence that his medical condition rendered him unfit for duty or disqualified him from attendance at the SGMC, there is an insufficient evidentiary basis to support a conclusion his reduction was unjust or that would support changing his retired grade.  

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.



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)                                         AR20100025364



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ABCMR Record of Proceedings (cont)                                         AR20100025364



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