BOARD DATE:	  21June 2012

		DOCKET NUMBER:  AR20120000296 


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 he was placed on the retired list in the rank/grade of staff sergeant (SSG)/E-6, the highest grade he satisfactorily held, instead of sergeant (SGT)/E-5.

2.  The applicant states when he was transferred from the Michigan Army National Guard (MIARNG) to the Retired Reserve in 1998, his orders listed his rank/grade as SGT/E-5.  However, the orders placing him on the Retired List were amended to show SSG/E-6.  When he applied for retired pay at age 60, the reviewing official did not see his amendment orders that showed his rank/grade as SSG/E-6.

3.  The applicant provides:

* Orders 077-024, issued by the State of Michigan, Department of Military and Veterans' Affairs, dated 18 March 1998
* Orders 092-033, issued by the same office, dated 2 April 1998
* Orders P05-684908, issued by the U.S. Army Human Resources Command, St. Louis, MO, dated 3 May 2006

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 14 September 1946.

3.  Having had prior enlisted service in the Regular Army, the applicant enlisted in the MIARNG in the rank/grade of SGT/E-5 on 25 April 1978.  He served through multiple extensions in a variety of assignments, and he was promoted to SSG/E-6 on 12 June 1979.

4.  His DA Form 2166-6 (Enlisted Evaluation Report) for the period October 1981 through September 1982 shows he served satisfactorily in the rank/grade of SSG/E-6. 

5.  On 17 June 1986, he accepted a voluntary reduction to SGT/E-5 for the purpose of a transfer to a different unit.  The authority for his reduction is listed as National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 6-35.  His date of rank (DOR) is listed as 25 April 1978.

6.  Orders 077-024, dated 18 March 1998, honorably discharged the applicant from the ARNG effective 16 March 1998 and transferred him to the U.S. Army Reserve (USAR) Control Group (Retired Reserve) effective 17 March 1998 in the rank/grade of SGT/E-5.

7.  The National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) for the period ending 30 March 1998 shows he completed
25 years, 11 months, and 5 days of service for pay.  The authority and reason for his separation is shown as National Guard Regulation 600-200, paragraph
8-27u, by reason of transfer to the Retired Reserve.  Additionally, this form shows in item 5a (Rank) and item 5b (Pay Grade) the entries SSG and E-6, respectively.  Item 6 (DOR) shows the entry "78  04  25" (25 April 1978).

8.  Orders 092-033, dated 2 April 1998, amended Orders 077-024 to show the applicant was discharged from the ARNG effective 30 March 1998 and transferred to the Retired Reserve effective 1 April 1998 in the rank/grade of SSG/E-6.

9.  On 14 April 1998, the MIARNG issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  This letter notified him that he had completed the required years of service and would be eligible for retired pay upon application at age 60.

10.  Orders P05-684908, dated 3 May 2006, placed the applicant on the Retired List in the retired rank of SGT effective 14 September 2006, his 60th birthday, in accordance with Title 10, U.S. Code, section 12731.

11.  Title 10, U.S. Code, section 12731, states that a person is entitled upon application to retired pay if the person is at least 60 years of age and has performed at least 20 years of service as computed under section 12732.

12.  Department of Defense Financial Management Regulation (DODFMR), volume 7B (Military Pay Policy and Procedures-Retired Pay), chapter 1 (Initial Entitlements-Retirements), section 0105 (Rank and Pay Grade), paragraph 010501A (General Determinations) states that unless entitled to a higher grade under some other provision of law, those Regular and Reserve members who retire other than for disability, will retire in the Regular or Reserve grade they hold on the date of retirement.  Paragraph 10503 (Satisfactory Service) provides that the determination as to what constitutes satisfactory service for the purpose of retirement in the highest grade is within the discretionary power of the Secretary of the Military Department concerned.

13.  Army Regulation 135-180 (ARNG and Army Reserve 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 by him or her during his or her entire period of service.  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.

14.  Army Regulation 135-180, paragraph 1-4, states that retired pay is pay granted to Soldiers and former Reserve Component (RC) Soldiers under Title 10, U.S. Code, section 1331, after completion of 20 or more years of qualifying service and upon attaining age 60.  This pay is based on the highest grade satisfactorily held at any time during an individual's entire period of service, other than in an inactive section of an RC.


DISCUSSION AND CONCLUSIONS:

1.  By law, a person granted retired pay will receive such pay in the highest grade satisfactorily held by him or her during his or her entire period of service.  Service in the highest grade will not be deemed satisfactory if it is determined that the revision to a lower grade was due to misconduct or court-martial or if there is information in the Soldier's service record to indicate clearly that the highest grade was not served satisfactorily.

2.  In the applicant's case, the evidence of record shows he was promoted to SSG/E-6 on 12 June 1979 and held that grade until 17 June 1986 when he was voluntarily reduced to SGT/E-5 in what appears to be to accept a different position.  There is no evidence of record that shows he was reduced for misconduct or any other negative/derogatory reason.

3.  The applicant's record should be corrected to show he retired in the rank/grade of SSG/E-6 on his 60th birthday and he should be paid all due retired pay as a result of this correction.

4.  In view of the foregoing, the applicant record 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 the evidence presented is 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 P05-684908, issued by the U.S. Army Human Resources Command, dated 3 May 2006, to show he was placed on the retired List effective 14 September 2006 in the rank/grade of "staff sergeant (E-6)" and 

	b.  auditing his pay records and paying him all retired pay due as an E-6 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)                                         AR20120000296



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ABCMR Record of Proceedings (cont)                                         AR20120000296



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