BOARD DATE: 14 July 2011
DOCKET NUMBER: AR20100029312
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, that he be placed on the retired list as a platoon sergeant/E-7.
2. The applicant states:
* His pay grade should be corrected from staff sergeant/E-6 to platoon sergeant/E-7 for retirement purposes
* He believes the Department of the Army made an error in posting the correct pay grade
3. The applicant provides:
* Defense Finance and Accounting Service letter, dated 28 September 2010
* Reduction orders, dated 10 September 1983
* Emails
* April 1982 Leave and Earnings Statement
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. He was born on 18 February 1947. Having prior active service in the U.S. Air Force and U.S. Navy, he enlisted in the California Army National Guard (CAARNG) on 26 November 1973. On 25 November 1975, he was honorably discharged. After a break in service, he enlisted in the CAARNG on 21 February 1976. He was promoted to platoon sergeant/E-7 effective 15 March 1982.
3. On 19 September 1983, he was reduced from platoon sergeant/E-7 to staff sergeant/E-6 due to an administrative reason.
4. On 1 April 1992, he was honorably discharged in the rank and grade of staff sergeant/E-6 from the CAARNG and transferred to the Retired Reserve.
5. On 18 February 2007, he was placed on the retired list in the rank of staff sergeant/E-6.
6. 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 Soldiers service record to indicate clearly that the highest grade was not served satisfactorily.
DISCUSSION AND CONCLUSIONS:
Evidence shows he was promoted to platoon sergeant/E-7 in March 1982 and that he was reduced in rank to staff sergeant/E-6 due to administrative reasons in September 1983. Since there is no evidence of record which shows his service in the rank of platoon sergeant was not satisfactory, and in accordance with the governing regulation, his military records should be corrected to show that he was placed on the retired list as a platoon sergeant/E-7 effective 18 February 2007.
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 that he was placed on the retired list in the rank of platoon sergeant/E-7 effective 18 February 2007 and that he be paid all back retired pay due as a result of the 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.
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