IN THE CASE OF:	  

		BOARD DATE:	  16 August 2011

		DOCKET NUMBER:  AR20110002888 


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 was retired in the rank of staff sergeant (SSG)/E-6 and to show he was a SSG/E-6 from October 1991 to February 1993.

2.  He states the rank on his discharge is sergeant (SGT)/E-5, which is an error.  He wants the error corrected for retirement purposes. 

3.  He provides two pages of a Verification of Military Experience and Training from the Defense Manpower Data Center (DMDC). 

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 was born on 11 January 1952.

3.  He was inducted into the Army of the United States on 2 October 1972.  He was honorably released from active duty on 30 September 1974 and transferred to the U.S. Army Reserve (USAR) to complete his military service obligation.  He was honorably discharged from the USAR on 10 October 1978.  After a break in service, on 5 October 1988, he enlisted in the USAR, where he served until he enlisted in the North Carolina Army National Guard (NCARNG) on 3 February 1994.  He was discharged from the NCARNG and transferred to the USAR Control Group (Retired Reserve) on 18 April 2005.  

4.  Item 18 (Appointments and Reductions) of his DA Form 2-1 shows he was promoted to SGT in the USAR effective 7 March 1991 and to SSG in the USAR on 19 October 1992.  The final entry in item 18 shows he held the rank of SGT while he was in the ARNG with an effective date of 7 March 1991.  

5.  His record includes DA Forms 2166-7 (Noncommissioned Officer (NCO) Evaluation Report) covering the periods November 1992 to October 1993 and November 1993 to February 1994 that show he held the rank of SSG and his date of rank was 19 October 1992.  The forms show he served successfully during both rating periods.

6.  A DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States) shows, on 3 February 1994, he enlisted in the NCARNG for 
2 years in the rank of SGT/E-5.  

7.  On 18 April 2005, the Joint Force Headquarters, Department of Crime Control and Public Safety, Raleigh, NC, notified him he was eligible for retired pay at age 60 with 15 years of service.  

8.  Orders 111-806, issued by the Office of the Adjutant General, Department of Crime Control and Public Safety, Raleigh, NC, dated 21 April 2005, assigned the applicant to the Retired Reserve effective 18 April 2005.  These orders show his rank as SGT.   

9.  Army Regulation 135-180 (Qualifying Service for Retired Pay Nonregular Service) states, in pertinent part, 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 6 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 serving in the rank/grade of SGT/E-5 when he was discharged from the NCARNG on 18 April 2005.  He was properly transferred to the Retired Reserve in that rank/grade because he held this rank at the time of discharge.  

2.  Based on the available evidence, he is not entitled to correction of his record to show he held the rank/grade of SSG/E-6 from October 1991 to February 1993.  He held this rank/grade from 19 October 1992 to 3 February 1994.  He enlisted in the NCARNG in the rank/grade of SGT/E-5.

3.  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 in this case confirms the applicant served in the highest grade he held satisfactorily (pay grade E-6) well over 6 months.  

4.  Accordingly, when he becomes eligible to receive retired pay on 11 January 2012, the date he reaches age 60, he should receive retired pay in pay grade     E-6.  However, in his application for retired pay he must indicate that his highest grade held was E-6 and he should attach evidence (such as his DA Form 2-1 and NCO Evaluation Reports) to show he satisfactorily served in that grade.

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)                                         AR20110002888



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110002888



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1