IN THE CASE OF:
BOARD DATE: 21 July 2011
DOCKET NUMBER: AR20100026331
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 record to show he was placed on the Retired List in pay grade E-8.
2. The applicant states he held pay grade E-8 longer than the minimum of 6 months required for placement on the Retired List in pay grade E-8.
3. The applicant provides:
* his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* Army National Guard Retirement Points History Statement, prepared on 17 August 2007
* Certificates of Promotion to the rank of master sergeant (MSG) and first sergeant (1SG)
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. The applicant served on active duty during the period 12 February 1970 through 9 February 1973. He enlisted in the Army National Guard (ARNG) on 5 August 1975 and served through 6 August 1978. On 17 April 1986, he again enlisted in the ARNG and he served continuously until his retirement on 7 February 2007. The highest rank/grade he attained was 1SG/E-8.
3. Orders 95-1, issued by Headquarters, 34th Infantry Division, Rosemount, MN, dated 4 April 2000, promoted him to the rank/grade of MSG/E-8, effective
11 March 2000. Orders 95-2, issued by the same headquarters, laterally appointed him to the rank of 1SG, effective 12 March 2000.
4. Orders 44-2, issued by the same headquarters, dated 13 February 2002, reduced him in grade from 1SG to SFC, effective 2 February 2002, by reason of voluntary reduction.
5. His NGB Form 22 shows he was discharged from the ARNG in the rank/grade of SFC/E-7 and he was transferred to the Retired Reserve effective 7 February 2007.
6. An ARNG Retirement Points History Statement, prepared on 17 August 2007, shows his highest grade held as E-8.
7. Orders P08-926040, issued by the U.S. Army Human Resources Command, St. Louis, MO, dated 24 August 2010, placed him on the Retired List, effective
3 September 2010, in the retired rank of SFC.
8. In the processing of this case, on 7 June 2011 an advisory opinion was obtained from the Personnel Policy Division, NGB. The advisory official recommended approval of the applicant's request that his rank at retirement be changed from SFC/E-7 to the highest rank achieved of MSG/E-8. The advisory official stated the applicant was promoted to MSG on 11 March 2000 and he took a voluntary reduction in grade to the rank of SFC for personal reasons. The advisory opinion further indicated the State supported their recommendation.
9. On 14 June 2011, the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal. He did not respond.
10. Army Regulation 600-8-19 (Enlisted Promotions and Reductions), paragraph 7-14e, provides that concurrent with separation from the ARNG and transfer to the Retired Reserve or placement on the Retired List, Soldiers will be retired at the highest enlisted grade satisfactorily held, provided they were not reduced for misconduct or inefficiency.
11. Army Regulation 135-180 (Army National Guard and Army Reserve - Qualifying Service for Retired Pay Nonregular Service) states that if the Soldier was transferred to the Retired Reserve or discharged on or after 25 February 1975, the retired grade will be that grade which an enlisted Soldier held while on active duty or in an active reserve status for at least 185 days or 6 calendar months.
DISCUSSION AND CONCLUSIONS:
1. The applicant was promoted to MSG/E-8 and he was laterally appointed to the 1SG/E-8 effective 12 March 2000. He was voluntarily reduced to SFC/E-7 on 2 February 2002. He completed 1 year, 10 months, and 22 days in pay grade
E-8 in an active reserve status. As such, since he held the pay grade of E-8 in an active reserve status for at least 185 days or 6 calendar months, he is entitled to placement on the Retired List in the rank/grade of 1SG/E-8.
2. In view of the foregoing, the applicant is entitled to correction of his record as shown below.
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 the state Army National Guard records and the Department of the Army records of the individual concerned be corrected by amending Orders P08-926040, issued by the U.S. Army Human Resources Command, St. Louis, dated 24 August 2010, to show he was placed on the Retired List in the retired grade of "First Sergeant."
___________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.
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