IN THE CASE OF:	  

		BOARD DATE:	  5 July 2011

		DOCKET NUMBER:  AR20110010831 


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 reconsideration of his earlier request to show he was placed on the retired list in the rank/grade of sergeant first class (SFC)/E-7, the highest rank/grade he satisfactorily held. 

2.  The applicant states he was promoted to SFC on 2 November 1984 but he accepted a voluntary reduction to sergeant (SGT)/E-5 in March 1990.  He served over 5 years as a SFC/E-7.

3.  The applicant provides:

* National Guard Bureau (NGB) Form 23A (Army National Guard (ARNG) Current Annual Statement)
* Extract of Title 10, U.S. Code (USC), section 3963

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090013111 on 20 May 2010.

2.  The applicant provides his NGB Form 23A which was not previously reviewed by the Board.  Therefore, it is considered as new evidence and warrants consideration by the Board. 

3.  Having had prior active enlisted service from 2 August 1965 to 1 August 1968 and 13 January 1970 to 18 May 1974 (he was discharged as a specialist five (SP5)/E5), the applicant's records show he enlisted in the Massachusetts ARNG (MAARNG) on 8 March 1979 for 3 years in the rank/grade of SGT/E-5.  He executed several extensions in the MAARNG and he was promoted to staff sergeant (SSGT)/E-6 on 12 July 1981.

4.  On 2 November 1984, Headquarters, MAARNG, published Orders 135-5 promoting the applicant to SFC/E-7 effective 2 November 1984 in military occupational specialty (MOS) 71L (Administrative Specialist).  He was assigned to the Camp Edwards Training Site, Camp Edwards, MA.  He performed satisfactorily in this rank/grade until 16 March 1990.

5.  On 16 March 1990, he accepted a SGT/E-5 position and he subsequently entered active duty in an Active Guard Reserve (AGR) status.  He was assigned to the 1st Battalion, 104th Infantry, Westfield, MA.  

6.  He served in MOS 92Y (Unit Supply Sergeant) and 75B (Personnel Administration Specialist) and he was promoted while on active duty to SSG/E-6 on 2 August 1995.  

7.  On 27 May 1999, the Adjutant General's Office, MAARNG, published Orders 147-4 ordering his release from active duty and placing him on the retired list in his retired rank/grade of SSG/E-6, effective 31 August 1999 by reason of having completed sufficient service for an active duty retirement.

8.  He was honorably retired on 31 August 1999 under Title 10, USC, section 3914 and he was placed on the retired list in his retired rank/grade of SSG/E-6 on 1 September 1999.  He completed 20 years and 12 days of creditable active service.

9.  On 13 August 2009, he petitioned the Army Grade Determination Review Board (AGDRB) for placement on the retired list in the rank/grade of SFC/E-7.  An AGDRB official notified him that although the AGDRB has the authority to advance him on the retired list to SFC/E-7 on his 30-year mark under the provisions of Title 10, USC, section 3964, the official believed that he should have been placed on the retired list in 1999 in the rank/grade of SFC under Title 10, USC, section 3963.

10.  The applicant provides a copy of his NGB Form 23a, dated 2 May 1996 with his active duty (AD) points between 8 March 1985 and 8 March 1989 highlighted. 

The areas highlighted show he completed 188, 249, 232, 174, and 160 active duty days during the Retirement Years (RY) March 1985 to March 1986, March 1986 to March 1987, March 1987 to March 1988, March 1988 to March 1989, and March 1989 to March 1990, respectively. 

11.  Army Regulation 635-5 (Separations Documents) prescribes the preparation guidelines for DD Form 214.  It states in pertinent part that Item 4 (Grade, Rate, or Rank) will reflect the active duty grade or rank and pay grade at time of separation.

12.  Title 10, USC, section 101 sets forth various definitions.  Section 101(d) states the following definitions relating to duty status apply in this title: 

	a.  Section 101(d)(1) states the term "active duty" means full-time duty in the active military service of the United States.  Such term includes full-time training duty, annual training duty, and attendance, while in the active military service, at a school designated as a service school by law or by the Secretary of the military department concerned.  Such term does not include full-time National Guard duty. 

	b.  Section 101(d)(3) states the term "active service" means service on active duty or full-time National Guard duty. 

	c.  Section 101(d)(4) states the term "active status" means the status of a member of a Reserve Component (RC) who is not in the inactive Army National Guard or inactive Air National Guard, on an inactive status list, or in the Retired Reserve. 

	d.  Section 101(d)(5) states the term "full-time National Guard duty" means training or other duty, other than inactive duty, performed by a member of the Army National Guard of the United States or the Air National Guard of the United States in the member’s status as a member of the National Guard of a State or territory, the Commonwealth of Puerto Rico, or the District of Columbia under section 316, 502, 503, 504, 505, of Title 32 for which the member is entitled to pay from the United States or for which the member has waived pay from the United States. 

13.  Title 10, USC, section 3963 (Highest grade held satisfactorily: Reserve enlisted member reduced in grade not as a result of the member's misconduct) states a Reserve enlisted member of the Army described in subsection (b) of this section who is retired under section 3914 of this title shall be retired in the 

highest enlisted grade in which the member served on active duty satisfactorily (or, in the case of a member of the National Guard, in which the member served on full-time National Guard duty satisfactorily), as determined by the Secretary of the Army.  This section applies to a Reserve enlisted member who at the time of retirement is serving on active duty (or, in the case of a member of the National Guard, on full-time National Guard duty) in a grade lower than the highest enlisted grade held by the member while on active duty (or full-time National Guard duty); and was previously administratively reduced in grade not as a result of the member’s own misconduct, as determined by the Secretary of the Army.  This section applies with respect to Reserve enlisted members who are retired under section 3914 of this title after 30 September 1996.

DISCUSSION AND CONCLUSIONS:

1.  The applicant served on active duty from 2 August 1965 to 1 August 1968 and 13 January 1970 to 18 May 1974.  When he was discharged on 18 May 1974, he was discharged as a SP5/E-5.  

2.  He enlisted in the ARNG on 8 March 1979 and performed his ARNG duties.  He was promoted in the ARNG to SFC/E-7 on 2 November 1984.  He served in this rank/grade while in the ARNG (not on active duty) until 16 March 1990.  During this period of service, he completed 188, 249, 232, 174, and 160 active duty days during the RYs March 1985 to March 1986, March 1986 to March 1987, March 1987 to March 1988, March 1988 to March 1989, and March 1989 to March 1990, respectively. 

3.  He entered active duty in an AGR status on 16 March 1990 as a SGT/E-5 and he was promoted to SSG/E-6 while on active duty on 2 August 1995.  He held this rank/grade until his active duty retirement under Title 10, USC, section 3914 on 31 August 1999.  He was not promoted to SFC/E-7 while on active duty.

4.  The law states a Reserve enlisted member of the Army who is retired under section 3914 of Title 10, USC, shall be retired in the highest enlisted grade in which the member served on active duty satisfactorily (or, in the case of a member of the National Guard, in which the member served on full-time National Guard duty satisfactorily).  The applicant did in fact serve in an active status as a SFC/E-7 from 1984 to 1990.  It is unclear why he did not request retirement at the highest grade held.  Regardless, he is entitled to retire at the highest grade held which is SFC/E-7. 


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 amendment of the ABCMR’s decision in Docket Number AR20090013111, dated 20 May 2010.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  amending Orders 147-4, dated 27 May 1999, to show he was placed on the retired list in the retired rank/grade of SFC/E-7; and

	b.  paying him all back 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)                                         AR20110010831



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ABCMR Record of Proceedings (cont)                                         AR20110010831



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