IN THE CASE OF:	  

		BOARD DATE:	  24 July 2012

		DOCKET NUMBER:  AR20110021768 


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 that he receive all due back pay as a result of restoration to the grade of sergeant (SGT)/E-5. 

2.  He states the Army Discharge Review Board (ADRB) voted to upgrade his 
16 February 1995 discharge under other than honorable conditions (UOTHC) to an honorable discharge in 2008 and his grade was also restored to SGT/E-5.  When he enlisted in the Army National Guard (ARNG) in 2003, he had to request a waiver and enter in the grade of private (PVT)/E-1.  

3.  He also states his unit told him he would receive back pay as a result of the correction and he believes he is entitled to any difference in pay he would have received if he had entered the Army in 2003 in the grade of SGT/E-5.  He had to work his way up from the grade of PVT/E-1 through specialist (SPC)/E-4 until the Georgia ARNG (GAARNG) prepared orders restoring him to SGT/E-5.

4.  The applicant provides:

* the 2008 ADRB results
* restoration orders
* various letters
* his leave and earnings statements for the period from January 2003 through April 2010



CONSIDERATION OF EVIDENCE:

1.  A National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows he enlisted in the ARNG on 28 September 1982 after having prior service in both the Regular Army and the U.S. Army Reserve.  

2.  His record contains a copy of Orders 8-2, dated 26 April 1985.  These orders show he was promoted to the grade of specialist five/E-5 on 1 May 1985 with a date of rank (DOR) of the same.  He was laterally appointed to SGT/E-5 on an unknown date.

3.  He was discharged on 16 February 1995 and his characterization of service was listed as UOTHC.  He was reduced to the grade of PVT/E-1 and had served a total of 12 years, 4 months, and 19 days.  

4.  On 21 October 2002, the applicant was granted an enlistment waiver and on 
6 January 2003 he enlisted in the ARNG in the grade of PVT/E-1 after more than a 7-year break-in-service.  

5.  He applied to the ADRB for an upgrade of his discharge on 18 September 2007.  The ADRB voted to grant relief in the form of an upgrade of the characterization of his service to fully honorable.  However, the ADRB determined that the reason for discharge was proper and equitable and voted not to change it.  The action entailed a restoration to the grade of SGT/E-5. 

6.  The ADRB recommended to The Adjutant General, GAARNG, that the applicant be considered for a change in his authority and reason for discharge and that he be issued an NGB Form 22A (Correction to NGB Form 22) as follows:

* change characterization of service to fully honorable
* restoration of grade to SGT/E-5

7.  He provides a copy of Orders 333-05, dated 28 November 2008, which directed the ADRB's recommended actions.  As such, an NGB Form 22A was issued as an amendment to the NGB Form 22 for the period ending 16 February 1995.  This form shows his grade was restored to SGT/E-5 and his discharge was upgraded to fully honorable.  

8.  The applicant also provides a memorandum from the Office of the Staff Judge Advocate (SJA), Fort Gordon, GA, addressed to the Legal Assistance Office, GAARNG, dated 31 December 2008.  This document asked that action be taken to restore the applicant's grade as soon as possible. 
9.  The Deputy G-1, GAARNG, Joint Force Land Component, provided a response to the SJA which showed Orders 333-05, dated 28 November 2008, had been issued.  

10.  He was honorably discharged from the GAARNG on 30 June 2009.  His NGB Form 22 shows his grade as SPC/E-4 with a DOR of 10 June 2004.

11.  A second NGB Form 22A corrected the NGB Form 22 for the period ending 30 June 2009 to show:

* Item 5a (Rank) – SGT
* Item 5b (Pay Grade) – E-5
* Item 6 (DOR) – 85 05 01 (1 May 1985)

12.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes the enlisted promotions and reductions function of the military personnel system.  It states that when the separation authority determines that a Soldier is to be discharged from the Service under other than honorable conditions, he/she will be reduced to the lowest enlisted grade.  

13.  Chapter 2 of National Guard Regulation 600-200 (Enlisted Personnel Management), in effect at the time of the applicant’s 2003 enlistment, prescribed policy and eligibility standards for the enlistment of persons with prior service (PS) in the ARNG.  

	a.  Paragraph 2-28 stated the pay grade and DOR upon enlistment in the ARNG would be determined in accordance with table 2-1 [sic] and Army Regulation 600-20 (Army Command Policy).  PS applicants would not be enlisted in a higher grade than PVT/E-2 unless entitled by table 2-1 [sic]. 

	b.  Table 2-4, rule D, states an applicant who is a former enlisted member may be enlisted in a vacant position and in the pay grade held at time of last discharge.  Authority for an enlistment pay grade other than E-1 will be explained in Section VI (Remarks) of the DD Form 1966-Series (Record of Military Processing – Armed Forces of the United States).  

14.  Paragraph 3-4 of Army Regulation 600-20 states, for a PS ARNG Soldier who enlists in the ARNG more than 24 months after discharge, the DOR on restoration to a grade from which reduced following a successful appeal of the reduction or action by a superior authority to mitigate the punishment is the DOR held before the reduction. 



DISCUSSION AND CONCLUSIONS:

1.  The applicant was discharged from the GAARNG on 16 February 1995 and his characterization of service was listed as UOTHC.  In accordance with Army Regulation 600-8-19, he was reduced to the grade of PVT/E-1.

2.  His record shows he was granted an enlistment waiver and he enlisted in the GAARNG on 6 January 2003 in the grade of PVT/E-1. 

3.  In 2007, he applied to the ADRB for an upgrade of his UOTHC discharge.  The ADRB determined his previous characterization of service was too harsh and voted to grant him a fully honorable discharge.  Based on the change in the characterization of his service, he automatically received a restoration to the previous grade held.

4.  Army Regulation 600-20 states that following a successful appeal, the Soldier’s DOR will be adjusted to the DOR held before the reduction.  As such,    it would serve in the interest of justice to show he enlisted in the GAARNG on     6 January 2003 in the grade of SGT/E-5 with a DOR of 1 May 1985.  

5.  The Defense Finance and Accounting Service (DFAS) should conduct a complete audit of his records and pay him any difference in pay and allowances based on the adjusted DOR. 

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 his 6 January 2003 ARNG enlistment contract to show he enlisted in the grade of SGT/E-5 with a DOR of 1 May 1985;

	b.  having DFAS complete an audit of his military pay records; and 

	c.  paying him any difference in pay and allowances as a result of this adjustment in grade.  




      _______ _   __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)                                         AR20110021768





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ABCMR Record of Proceedings (cont)                                         AR20110021768



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