IN THE CASE OF:	  

		BOARD DATE:	  22 May 2012

		DOCKET NUMBER:  AR20110019220 


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 record to show the highest grade he held was sergeant (SGT)/E-5.

2.  He states he should be getting paid at the higher pay grade.

3.  He provides a DD Form 108 (Application for Retired Pay Benefits).

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 17 January 1948.



3.  Following periods of service in the Army of the United States (AUS) and U.S. Army Reserve (USAR), on 13 November 1976, he enlisted in the Indiana ARNG (INARNG).  He was promoted to specialist five (SP5)/E-5 effective 2 May 1980.  He was honorably discharged from the INARNG on 9 September 1980 to enlist in another Reserve Component.

4.  On 11 December 1982, he again enlisted in the INARNG.

5.  His DA Form 2-1 (Personnel Qualification Record) shows he was promoted to staff sergeant (SSG)/E-6 with a date of rank (DOR) of 11 July 1982.  He was reduced to SGT/E-5 effective 16 April 1987 with a DOR of 11 July 1982.

6.  His record contains DA Forms 2166-6 (Enlisted Evaluation Report (EER)) that show he was evaluated as an SSG/E-6 from October 1982 through September 1986.

7.  Orders 18-2, issued by Headquarters, 2d Battalion, 150th Field Artillery, INARNG, dated 7 May 1987, amended Orders 14-2, issued by the same headquarters, dated 17 April 1987, pertaining to his reduction.  Orders 14-2 are not available in his record, and Orders 18-2 do not show the reason for his reduction.

8.  Additional EERs in his record show he was evaluated as an SGT/E-5 from October 1986 through November 1991.  These EERs indicate he served satisfactorily.

9.  Orders 16-1, issued by Headquarters, 2d Battalion, 150th Field Artillery, INARNG, dated 21 September 1992, shows he was reduced from SGT/E-5 to specialist (SPC)/E-4 by reason of voluntary reduction.

10.  On 18 November 1994, the State of Indiana Military Department, Indianapolis, IN, notified him he had completed the required years of service to be eligible for retired pay upon application at age 60.

11.  On 1 May 1995, he was honorably discharged from the INARNG and transferred to the Retired Reserve.  The National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) issued to him at the time shows he was a SPC/E-4 at the time of his discharge.  The NGB Form 22 shows he had completed 24 years, 4 months, and 24 days of total service for pay.

12.  On 30 January 2008, he applied for retired pay.  He completed a DD Form 108 and DD Form 2656 (Data for Payment of Retired Personnel) wherein he indicated the highest military pay grade he had held was SGT/E-5.
13.  Orders P04-804826, issued by the U.S. Army Human Resources Command, St. Louis, MO, dated 8 April 2008, placed him on the AUS Retired list as a SPC/E-4 effective 17 January 2008, the date he reached 60 years of age.

14.  Army Regulation 135-180 (Qualifying Service for Retired Pay Nonregular Service) states a person granted retired pay will receive such pay in the highest grade (temporary or permanent) satisfactorily held during his or her entire period of service.  If the Soldier was transferred to the Retired Reserve or discharged on or after 25 February 1975, retired grade will be the highest grade which a commissioned officer or enlisted Soldier held while on active duty or in an active reserve status for at least 185 days or 6 calendar months.  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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was promoted to SSG/E-6 with a DOR of 11 July 1982.  In 1987, he was reduced to SGT/E-5 for reasons not shown in his record.  In 1992, he was voluntarily reduced to SPC/E-4, the rank/grade in which he was later placed on the AUS Retired list.

2.  He has specifically requested correction of his record to show the highest grade he held was SGT/E-5 in spite of the fact that he served as an SSG/E-6 for approximately 4 years.  The available records do not show why he was reduced from SSG/E-6 to SGT/E-5.  In the absence of documentation showing the reason for this reduction, there is an insufficient basis upon which to determine if his service as an SSG/E-6 was satisfactory.  

3.  The record shows he did serve satisfactorily as an SGT/E-5 for several years until his voluntary reduction in 1992.  Accordingly, his record should be corrected to show he was placed on the Retired List as an SGT/E-5 and authorized to receive non-regular retired pay based on that pay grade effective 17 January 2008, the date he turned age 60 and became eligible to receive retired pay.  Further, it would be appropriate to provide him 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.  showing his retired grade was established as SGT/E-5 and he was authorized to receive retired pay in that grade as of 17 January 2008, the date he reached age 60 and began receiving retired pay, 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)                                         AR20110019220



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ABCMR Record of Proceedings (cont)                                         AR20110019220



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