BOARD DATE:	  18 October 2011

		DOCKET NUMBER:  AR20110006834 


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 records to show he retired from the Vermont Army National Guard (VTARNG) in the rank/grade of sergeant first class (SFC)/E-7 instead of staff sergeant (SSG)/E-6.

2.  The applicant states he held the rank of SFC/E-7 from 7 July 1983 through 1 January 1991 and as a result of unit reorganization he accepted a voluntary reduction to SSG/E-6. 

3.  The applicant provides:

* Memorandum from his State G-1
* Retirement Application
* VTARNG Verification of his Rank/Grade
* National Guard Bureau (NGB) Form 23C (ARNG Retirement Points History Statement)
* Orders 194-030 (Retired Reserve)
* Email exchange
* Letter from the Defense Finance and Accounting Service

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was born on 9 January 1950, enlisted in the VTARNG for a period of 6 years on 7 December 1968, and held military occupational specialty 19E (Armor Crewman).  He served through multiple extensions in the ARNG in a variety of stateside assignments. 
2.  On 1 October 1987, the VTARNG issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  This letter notified him that he had completed the required years of service and would be eligible for retired pay upon application at age 60.

3.  His records do not contain official promotion orders to SSG/E-6 or SFC/E-7; however, item 18 (Appointments and Reductions) of his DA Form 2-1 (Personnel Qualification Record) shows he was promoted through the ranks as follows:

* SSG/E-6 with a date of rank (DOR) of 12 April 1975
* PSG (Platoon Sergeant) with a DOR of 7 July 1983
* SFC/E-7 with a DOR of 7 July 1983
* SSG/E-6 effective 1 January 1991 and with a DOR of 12 April 1975

4.  His records contain multiple efficiency reports that show he served satisfactorily in various capacities as a PSG, SFC, and SSG while assigned to the 1st Battalion, 172nd Armor, Morrisville, VT, as follows:

* DA Forms 2166-6 (Enlisted Evaluation Report) from November 1982 through September 1988 that listed his rank as a "PSG" and his DOR as "830707" 
* DA Forms 2166-7 (NCO (Noncommissioned Officer) Evaluation Report) from October 1988 through September 1989 that listed his rank as a "PSG" and his DOR as "830707" 
* DA Form 2166-7 from October 1989 through September 1990 that listed his rank as "SFC" and his DOR as "881101"
* DA Forms 2166-7 from November 1990 through October 1994 that listed his rank as "SSG" and DOR as "910101"

5.  He was honorably discharged from the VTARNG on 30 September 1995.  The NGB Form 22 (Report of Separation and Record of Service) he was issued shows he completed 26 years, 8 months, and 24 days of service for pay.  The authority and reason for discharge is shown as paragraph 8-27v, National Guard Regulation (NGR) 600-200 (Enlisted Personnel Separations).  This form also shows he had a statutory service obligation of 1 year, 3 months, and 7 days which was through 6 December 1996. Additionally, this form shows in item 5a (Rank) and item 5b (Pay Grade) the entries SSG and E-6 and in item 6 (DOR) the entry "75  04  12."

6.  On 6 October 1995, VTARNG published Orders Number 194-030 discharging him from the ARNG and transferring him to the Retired Reserve in the rank/grade of SSG/E-6, effective 30 September 1995.  The authority cited in the orders is paragraph 8-27v (failure to report to/for annual Inactive National Guard (ING) muster) of NGR 600-200.

7.  On 26 and 27 May 2009, he submitted an application for retired pay.  With his application he submitted two documents from his State G-1:

	a.  Memorandum, dated 26 May 2009, from the State G-1 to the U.S. Army Human Resources Command, St. Louis, MO (HRC-STL) wherein the State G-1 requested the applicant be retired in the rank/grade of SFC/E-7.  He added that due to an administrative error, the reduction orders from SFC to SSG could not be located and that it would be an injustice for him not to receive retired pay at the highest grade held.  

	b.  State G-1 verification of service in the VTARNG and listing of the applicant's rank as SSG/E-6 on 12 April 1975, promotion to SFC/E-7 on 7 July 1983, reduction to SSG/E-6 on 1 January 1991, due to reorganization, and honorable discharge on 30 September 1995. 

8.  On 16 July 2009, HRC-STL published Orders P07-908214 placing him on the retired list in the retired rank of SSG effective 9 January 2010, his 60th birthday, in accordance with Title 10, U.S. Code, section 12731.

9.  Title 10, U.S. Code, section 12731, states that a person is entitled upon application to retired pay if the person is at least 60 years of age and has performed at least 20 years of service as computed under section 12732.

10.  Department of Defense Financial Management Regulation, volume 7B (Military Pay Policy and Procedures-Retired Pay), chapter 1 (Initial Entitlements-Retirements), section 0105 (Rank and Pay Grade), paragraph 010501A (General Determinations) states that unless entitled to a higher grade under some other provision of law, those Regular and Reserve members who retire other than for disability, will retire in the Regular or Reserve grade they hold on the date of retirement.  Paragraph 10503 (Satisfactory Service) provides that the determination as to what constitutes satisfactory service for the purpose of retirement in the highest grade is within the discretionary power of the Secretary of the Military Department concerned.

11.  Army Regulation 135-180 (ARNG and Army Reserve Qualifying Service for Retired Pay Nonregular Service) states 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 Soldier's service record to indicate clearly that the highest grade was not served satisfactorily.

12.  Army Regulation 135-180, paragraph 1-4, states that retired pay is pay granted to Soldiers and former Reserve Component Soldiers under Title 10, U.S. Code, section 1331, after completion of 20 or more years of qualifying service and upon attaining age 60.  This pay is based on the highest grade satisfactorily held at any time during an individual's entire period of service, other than in an inactive section of a Reserve Component.

DISCUSSION AND CONCLUSIONS:

1.  By law, a person granted retired pay will receive such pay in the highest grade 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 the revision to a lower grade was due to misconduct or court-martial or if there is information in the Soldier's service record to indicate clearly that the highest grade was not served satisfactorily.

2.  In the applicant's case, the evidence of record shows he was promoted to SFC/E-7 on 7 July 1983 and held that grade until 1 January 1991 when he was reduced to SSG/E-6 in what appears to be a unit reorganization as confirmed by his State G-1.  Nothing in his records shows he was reduced for misconduct or any other negative/derogatory reason.

3.  Therefore, he should be entitled to correction of his records to show he retired in the rank/grade of SFC/E-7 on his 60th birthday and restoration of all retired pay as a result of this correction.

BOARD VOTE:

____x____  ___x_____  __x______  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is 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:

* amending Orders P07-908214 issued by U.S. the Army Human Resources Command on 16 July 2009 showing he was retired in the rank/grade of SFC/E-7 effective 9 January 2010
* auditing his pay records and paying him all retired pay due as a result of this 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.
ABCMR Record of Proceedings (cont)                                         AR20110006834



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110006834



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1