IN THE CASE OF:
BOARD DATE: 9 October 2012
DOCKET NUMBER: AR20120002901
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 pay grade E-6.
2. The applicant states his records incorrectly reflect that he was placed on the Retired List in pay grade E-5 instead of pay grade E-6 and he desires to have his identification card corrected.
3. The applicant provides copies of his National Guard Bureau Form 22 (Report of Separation and Record of Service) and orders transferring him to the U.S. Army Reserve (USAR) Control Group (Retired) in the rank of staff sergeant.
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's records, though quite incomplete, show he was born on 25 June 1935 and served in the Marine Corps from 26 October 1953 to 25 October 1956 and in the Marine Corps Reserve until he was honorably discharged on 25 October 1961.
3. He enlisted in the South Carolina Army National Guard (ARNG) on 16 May 1974 and was promoted to pay grade E-5 on 15 May 1975. He served through a series of continuous reenlistments and he was issued his 20-year letter on 8 August 1991.
4. On 24 September 1992, orders were published by the State of South Carolina Military Department which relieved the applicant from Active National Guard assignment and placed him on the State Retired List effective 2 October 1992. The orders directed his transfer to the Retired Reserve in the rank of staff sergeant under authority of section 25-1-590, Code of South Carolina Law, 1976. The orders also indicated that he served in the Technician/Active Guard Reserve/State Program.
5. On 21 December 1994, he submitted his application for retired pay benefits and indicated the highest grade he held was that of sergeant/E-5. His application was approved on 23 May 1995 for non-Regular retirement in pay grade E-5 effective 26 June 1992.
6. Title 10, U.S. Code, section 1406, governs non-Regular retirement and provides that a Reserve or National Guard member who is entitled to retired pay under section 12731 of this title shall be retired in the highest grade satisfactorily held by the person at any time in the Armed Forces.
7. Section 25-1-590, Code of Laws of South Carolina, 1976, provides that officers and enlisted men of the South Carolina ARNG shall be retired by order of the Commander in Chief with a promotion of one grade effective the date of retirement at the request of any officer or enlisted man upon completion of 20 or more years of honorable service in the Armed Forces of the United States, provided the last 10 years were served in the South Carolina ARNG. Retired officers and enlisted men shall draw no pay or allowances for the advanced grade except when recalled to duty in the South Carolina ARNG and then they will be paid the same as those on the active list.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that his records should be corrected to reflect that he retired in pay grade E-6 instead of pay grade E-5 has been noted and appears to lack merit.
2. In order to be advanced to a higher grade on the Retired List, the Soldier must have been advanced to a higher grade and have satisfactorily served in that grade prior to being placed on the Retired List.
3. In the applicant's, case he was placed on the State Retired List in the rank of staff sergeant on the date of his retirement under State law, but there is no evidence in the available records to show he ever served in that grade.
4. Additionally, the authority for his placement on the Retired List in the rank of staff sergeant applied only to his placement on the State Retired List, not the Army of the United States Retired List, as the applicant is only entitled to be paid as a staff sergeant if he is recalled to duty in the South Carolina ARNG.
5. In the absence of evidence to the contrary, there appears to be no basis to grant his request.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
___X____ ____X __ ____X___ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.
2. The Board wants the applicant and all others concerned to know this action in no way diminishes the sacrifices made by him in service to our Nation. The applicant and all Americans should be justifiably proud of his service in arms.
__________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) AR20120002901
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ABCMR Record of Proceedings (cont) AR20120002901
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