IN THE CASE OF:	  

		BOARD DATE:  22 March 2012

		DOCKET NUMBER:  AR20110017651 


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 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 his retired rank/grade as sergeant (SGT)/E-5 instead of specialist (SPC)/E-4.  In effect, he requests to be advanced on the retired list to the highest grade held.

2.  The applicant states he never was demoted and never got into trouble.

3.  The applicant provides:

* two DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 9 December 1968 and 18 September 1969
* a DD Form 214 (Report of Separation from Active Duty) for the period ending 18 September 1975
* DD Form 4/1 (Enlistment/Reenlistment Document – Armed Forces of the United States)
* Orders P06-808885, issued by the U.S. Army Human Resources Command, St. Louis, MO, dated 24 June 2008


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 was born on 9 July 1948.  He was inducted into the Army of the United States on 22 March 1968.  On 9 December 1968, he was honorably discharged for the purpose of enlistment into the Regular Army (RA).  He enlisted in the RA on 10 December 1968 and he served continuously until 18 September 1975, at which time he was honorably discharged from active duty in the rank/grade of private first class (PFC)/E-3.

3.  On 25 September 1979, he enlisted in the Kentucky Army National Guard (KYARNG) and he continued to serve through reenlistments or extensions until he was honorably discharged on 2 November 1990 at the expiration of his service obligation.

4.  His record contains:

	a.  Orders 3-8, issued by Headquarters, 198th Military Police Battalion, KYARNG, Louisville, KY, dated 1 March 1986, that shows he was promoted to SGT/E-5 on 1 March 1986.

	b.  a National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) for the period ending 2 November 1990 that shows he was honorably discharged from the KYARNG at the expiration of his service obligation.  Items 5a/b (Rank/Pay Grade) shows the entry "SGT/E-5" respectively.  Item 6 (Date of Rank) shows the entry "860301" (1 March 1986).

5.  His record is void of any documentation that indicates he did not serve satisfactorily in the rank/grade of SGT/E-5.



6.  His record contains and he provided a DD Form 4 that shows on
23 November 1990, after a break in service, he enlisted in the KYARNG for a period of 3 years in pay grade E-4.

7.  His record contains an NGB Form 22 that shows on 25 August 1993 he was honorably discharged because he was unfit for retention and he transferred to the Retired Reserve.  Item 10d (Total Service for Pay) shows he completed
21 years and 3 months of service for pay.

8.  Orders P06-808885, dated 24 June 2008, retired the applicant and placed him on the Retired List in the rank/grade of SPC/E-4, effective 9 July 2008, the date he turned age 60.

9.  Army Regulation 135-180 (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 during his entire period of service.  Service in the highest grade will not be deemed satisfactory if 
it is determined that any of the following exist:

	a.  reduction 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 no information in the Soldier's service record to indicate clearly that the highest grade was not served satisfactorily.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant held the rank/grade of SGT/E-5 from 
1 March 1986 through 2 November 1990 and served satisfactorily in that rank/grade.  By law and regulation, in connection with a non-regular retirement, enlisted members are entitled to receive retired pay in the highest grade held satisfactorily at any time in the armed forces.

2.  Therefore, his records should be corrected to show he was placed on the retired list in the rank/grade of SGT/E-5, effective 9 July 2008, the date he turned 60 and became eligible to receive retired pay.  Further, it would be appropriate to provide him with all back retired pay due 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 P06-808885, dated 24 June 2008, to show he was placed on the retired list in the retired rank/grade of sergeant (SGT)/E-5, 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)                                         AR20110017651



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ABCMR Record of Proceedings (cont)                                         AR20110017651



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