IN THE CASE OF:	  

		BOARD DATE:	  15 September 2011

		DOCKET NUMBER:  AR20110004443 


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 restoration of his rank/grade to sergeant first class (SFC)/E-7, the highest rank/grade in which he satisfactorily served in the Army National Guard (ARNG).

2.  The applicant states he was reduced for inefficiency after 16 years time in grade as an SFC/E-7 and has completed the required 30 years combined service on the active duty and retired lists to request correction.

3.  The applicant provides:

* his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 22 December 1970
* his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 30 September 1999
* Orders 41-1, issued by Headquarters, 29th Infantry Brigade, Hawaii Army National Guard (HIARNG), Honolulu, HI, dated 25 August 1982
* Orders 19-01, issued by the same headquarters, dated 4 August 1998
* Orders 067-001, issued by the State of Hawaii, Office of the Adjutant General, Honolulu, HI, dated 7 April 1999
* Orders 126-002, issued by the same office, dated 29 June 1999

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 enlisted in the HIARNG on 25 May 1970.  He successfully completed training and held military occupational specialty 11B (Light Weapons Infantryman).  He subsequently served through a series of reenlistments or extensions, performing duties in various positions in Hawaii until his retirement.  The highest rank/grade he attained while serving in the HIARNG was SFC/E-7.  However, at the time of his discharge he held the rank/grade of staff sergeant (SSG)/E-6.

3.  His record contains official orders promoting him to SFC/E-7 and item 18 (Appointments and Reductions) of his DA Form 2-1 (Personnel Qualification Record - Part II) shows he was promoted to SFC/E-7 on 25 August 1982.

4.  On 5 May 1998, the applicant received notification that the Qualitative Retention Board had recommended his retention in a unit of the ARNG for one additional year.  It stated the applicant needed to complete his missing Noncommissioned Officer Evaluation Reporting System (NCOERS) reports for year 1997 and that he needed to take and pass an Army Physical Fitness Test (APFT).  The notification further stated the applicant’s last APFT was taken on October 1996.

5.  A review of his NCOER for period April 1997 through March 1998 shows he received:

* "Excellent" ratings in Part IVb,d-f from his Rater
* An "Among the Best" rating in Part Va from his Rater
* The highest ratings in Parts Vc and d from his Senior Rater

However, in Part IVc, he received a “Needs (Some) Improvement” rating from his Rater.  In the APFT block an annotation of “9712/fail” is present.


6.  Orders 19-01, dated 4 August 1998, reduced the applicant from SFC/E-7 to SSG/E-6, effective 11 July 1998 by reason of inefficiency.

7.  Orders 067-001, dated 7 April 1999, discharged the applicant from the ARNG in the rank/grade of SSG/E-6 and transferred him to the Retired Reserve.

8.  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/her during his/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.

9.  Under the provisions of Title 10, United States Code section 3964 (10 USC §3964), if you are an enlisted (E-1 through E-9) or warrant officer (W-1 through W-5) retiree with less than thirty years of active service who previously held a higher grade, you can apply for advancement to that higher grade on the retired list.  This applies to former members of the Regular Army, and reserve members of the Army who were serving on active duty at the time of regular retirement.  In the case of members of the National Guard, full-time National Guard duty is considered active duty.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends after completing the requisite 30 years combined service on the active duty and retired lists, he should have been retired in the rank/grade of SFC/E-7 vice SSG/E-6, the highest rank/grade in which he satisfactorily served in the ARNG.

2.  By regulation, Reserve members of the Armed Forces are entitled to be placed on the Retired List in the highest grade in which they satisfactorily served. However, in the applicant's case, he did not satisfactorily serve in the rank/grade of SFC/E-7.  Evidence in the applicant’s record shows he failed an APFT and he was later reduced for inefficiency.  A reduction for inefficiency clearly indicates the applicant’s service in the rank/grade of SFC/E-7 was not served satisfactorily.

3.  In order to justify correction of a military record, the applicant must show or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant did not submit any evidence which would satisfy this requirement.

4.  In view of the foregoing evidence, there is no basis for granting the applicant's requested relief.

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)                                         AR20110004443



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ABCMR Record of Proceedings (cont)                                         AR20110004443



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