IN THE CASE OF:	  

		BOARD DATE:	  27 October 2011

		DOCKET NUMBER:  AR20110010083 


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 Indiana Army National Guard (INARNG) in the rank/grade of sergeant first class (SFC)/E-7 instead of staff sergeant (SSG)/E-6 and to restore his retired pay in the pay grade of E-7, the highest grade in which he satisfactorily served in the U.S. Air Force Reserve (USAFR).

2.  The applicant states when he transferred from the USAFR to the INARNG, the INARNG did not have an E-7 position available.

3.  The applicant provides:

* a self-authored statement
* Defense Finance and Accounting Service (DFAS) Audit Request Form
* U.S. Army Human Resources Command Calculation of Retired Pay Application
* DD Form 256 AF (U.S. Air Force Honorable Discharge Certificate)
* DD Form 363A (U.S. Army Certificate of Retirement)
* two Retiree Account Statements
* Notification of Eligibility for Retired Pay at Age 60 memorandum
* Orders P03-921840
* Letter from the Department of the Air Force Review Boards Office




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's records show he was born on 20 July 1945, enlisted in the USAFR in March 1977, successfully completed training and performed duties as a jet engine mechanic.  He served through multiple extensions in the USAFR in a variety of assignments.  His records do not contain official promotion orders to  master sergeant (MSgt)/E-7; however, his record does contain:

   a.  an Air Force Achievement Medal for the period 20 May 1989 through      20 January 1990 which shows his rank as MSgt;

   b.  DD Form 4/1 and 4/2 (Enlistment/Reenlistment Document – Armed Forces of the United States) which show he was honorably discharged from the USAFR on 12 December 1992 for the purpose of immediate reenlistment in pay grade   E-7; and

   c.  AF Form 526 (ANG/USAFR Point Credit Summary) prepared on 8 May 1993 which shows his rank as MSgt.

3.  The applicant enlisted in the INARNG in the rank/grade SSG/E-6 on 21 April 1994.  He successfully completed training and held military occupational specialty 13F (Fire Support Specialist).  He subsequently served through a series of reenlistments or extensions, performing duties in various positions in Indiana until his retirement.  The highest rank/grade he attained while serving in the INARNG was SSG/E-6.  

4.  On 7 March 1997, the State of Indiana Office of the Adjutant General 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.

5.  He was honorably discharged from the INARNG on 1 December 2002.  The National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) he was issued shows he completed 25 years and 11 months of service for pay.  The authority and reason for discharge is shown as paragraph 8-27u, National Guard Regulation (NGR) 600-200 (Enlisted Personnel Separations).  This form also shows in item 5a (Rank) and item 5b (Pay Grade) the entries SSG and E-6 and in item 6 (Date of Rank) the entry "94  04  21."

6.  On 16 March 2010, HRC-STL published Orders P03-921840 placing him on the retired list in the retired rank of SSG effective 20 July 2005, his 60th birthday, in accordance with Title 10, U.S. Code, section 12731.

7.  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.

8.  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.

9.  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.

10.  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 MSgt/E-7 and successfully held that grade for many years until he was honorably discharged from the USAFR.  There is no information in the applicant;s service record to indicate that he failed to serve satisfactorily as a MSgt/E-7.  He then enlisted in the INARNG in the rank/grade of SSG/E-6 on 21 April 1994 and held that grade until his honorable discharge on 1 December 2002.  Nothing in either of his records shows he was ever 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 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: 

   a.  amending Orders P03-921840 issued by U.S. the Army Human Resources Command on 16 March 2010 to show he was retired in the rank/grade of     SFC/E-7 effective 20 July 2005; and

   b.  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)                                         AR20110010083



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ABCMR Record of Proceedings (cont)                                         AR20110010083



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