IN THE CASE OF:	  

		BOARD DATE:	  1 March 2012

		DOCKET NUMBER:  AR20110016267 


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, placement on the Retired List in the rank/grade of sergeant first class (SFC)/E-7.

2.  The applicant states his request for advancement to the highest grade held was disapproved due to failing to include all of his active duty service.  The board did not review or include all of his service documents showing his total active duty service.  The board only reported his Army National Guard (ARNG) Active Guard Reserve (AGR) duty.

3.  He provides:

* E-7 promotion orders, dated 4 June 1998
* AGR orders, dated 18 August 2000
* release from active duty (REFRAD) and reassignment orders, dated 20 March 2006
* DD Forms 214 (Certificate of Release or Discharge from Active Duty), dated 5 May 1993 and 31 January 2007
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), dated 31 January 2007

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 Regular Army (RA) on 26 August 1980.  He completed training and he was awarded military occupational specialty 71L (Administrative Specialist).  He was honorably discharged on 5 May 1993 in pay grade E-5 at the expiration of his term of service.  He enlisted in the Kansas ARNG (KSARNG) on 6 May 1993.  He was promoted to staff sergeant (SSG)/E-6 on 10 August 1996.

3.  Orders 095-020, issued by the KSARNG, dated 4 June 1998, promoted him to SFC/E-7, with an effective date and date of rank of 4 June 1998.

4.  Orders 146-019, issued by the KSARNG, dated 18 August 2000, assigned him to the AGR with a reporting date of 1 August 2000.  He entered active duty on 19 August 2000.

5.  Orders 355-707, issued by the Joint Forces Headquarters Kansas, dated
20 December 2004, voluntarily reduced him from E-7 to E-6 under the provisions of National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 11-55, effective 15 December 2004, with a date of rank of 10 August 1996.

6.  On 8 September 2000, the State of Kansas, The Adjutant General, issued the applicant a memorandum, subject:  Notification of Eligibility for Retired Pay at Age 60.

7.  Orders 079-714, issued by the Land Component, Joint Forces Headquarters Kansas, Topeka, KS, dated 20 March 2006, released him from active duty effective 31 January 2007 and placed him on the Retired List effective the following day in the rank/grade of SSG/E-6.  The DD Form 214 he was issued at the time shows he completed 20 years and 17 days of creditable active service.

8.  He was also issued an NGB Form 22 for the period ending 31 January 2007 crediting him with completing 13 years, 8 months, and 25 days of net service this period and 12 years, 8 months, and 10 days of prior active Federal service.
9.  On 15 September 2011, the Army Grade Determination Review Board returned his petition without action because that board did not have jurisdiction in this case.

10.  National Guard Regulation 600-200, in effect at the time, established the policies for the management of ARNG enlisted Soldiers.  Paragraph 11-55 specified, if approved by the unit commander, a Soldier could volunteer for reduction to any lower grade for reassignment to another position, to another program, or to continue in service.  The promotion authority could then administratively reduce the Soldier without board action.

11.  There is no evidence in the applicant's official record showing he was reduced from SFC/E-7 to SSG/E-6 due to misconduct or any reason that would have hindered him from being placed on the Retired List in the highest rank that he held.

12.  Army Regulation 135-180 (Army National Guard and Army Reserve - Qualifying Service for Retired Pay Nonregular Service), implements statutory authorities governing the granting of "retired pay" to Soldiers and former Reserve component Soldiers.  Paragraph 2-11c states the Retired Activities Directorate, U.S. Army Reserve Personnel Center (currently designated the U. S. Army Human Resources Command) will screen each retirement applicant’s record to determine the highest grade held by him/her during his/her military service.  In arriving at the highest grade satisfactorily held, if the Soldier was transferred to the Retired Reserve on or after 25 February 1975, the retired grade will be that which an enlisted Soldier held while on active duty or in an active Reserve status for at least 185 days or 6 calendar months.

13.  Title 10, U.S. Code, section 3963 (Highest grade held satisfactorily) covers Reserve enlisted members reduced in grade not as a result of the member’s misconduct.

	a.  A Reserve enlisted member of the Army described in subsection b 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.

	b.  This section applies to a Reserve enlisted member who:

		(1)  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

		(2)  was previously administratively reduced in grade not as a result of the member’s own misconduct, as determined by the Secretary of the Army.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the KSARNG issued orders promoting the applicant to SFC/E-7 on 4 June 1998.  He entered active duty in the AGR Program on 19 August 2000 in pay grade E-7.  On 20 December 2004, the KSARNG issued orders reducing him to pay grade E-6, by reason of voluntary reduction, with an effective date of 15 December 2004.  On 31 January 2007, he was released from the AGR Program and the KSARNG and transferred to the Retired Reserve.

2.  The evidence shows he satisfactorily served as an SFC/E-7 from 4 June 1998 to 14 December 2004, a period of 6 years, 6 months, and 11 days.  Title 10, U.S. Code, section 3963 provides for retirement in higher grade satisfactorily held by an ARNG member previously administratively reduced not as a result of the member's own misconduct as determined by the Secretary of the Army.

3.  Therefore, based on the available evidence that the applicant satisfactorily held the rank/grade of SFC/E-7 more than 3 years, he was not reduced due to his own misconduct, and his retirement was approved, as a matter of equity in this case he is entitled to be placed on the Retired List in the rank/grade of SFC/E-7 based on satisfactory service in this rank/grade and under the provisions of Title 10, section 3963.

4.  In view of the foregoing, the applicant's records should be corrected as recommended below.

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 the State Army National Guard and the Department of the Army records of the individual concerned be corrected by:

	a.  amending Orders 079-714, issued by the Land Component, Joint Forces Headquarters Kansas, Topeka, KS, dated 20 March 2006, to show his retired grade of rank as SFC/E-7 with a current grade effective date of 4 June 1998, and

	b.  auditing his pay record 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)                                         AR20110016267



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ABCMR Record of Proceedings (cont)                                         AR20110016267



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