IN THE CASE OF:	  

		BOARD DATE:  4 September 2012

		DOCKET NUMBER:  AR20120003466 


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 retired from the Army National Guard (ARNG) in the rank/grade of sergeant (SGT)/E-5 instead of specialist (SPC)/E-4. 

2.  The applicant states he held the rank/grade of SGT/E-5 for more than
15 years.  Upon retirement, he retired as a SPC/E-4 instead of the higher rank/grade of SGT/E-5 that he held.  He would like this corrected.  He is entitled to retire at the highest grade held.

3.  The applicant provides:

* Orders transferring him to the Retired Reserve
* Honorable Discharge Certificate
* Certificate of appreciation
* Certificate of recognition
* Certificate of retirement
* Certificate of service

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he was born on 20 September 1949.

2.  He enlisted in the U.S. Marine Corps (USMC) on 19 July 1968 for a period of 4 years.  He was promoted to SGT/E-5 in the USMC on 1 December 1971.  He was honorably released from the USMC in the rank/grade of SGT/E-5 on 18 July 1972. 

3.  He enlisted in the New Jersey Army National Guard (NJARNG) on 21 March 1973 in the rank/grade of SGT/E-5 and he held military occupational specialty (MOS) 11C (Indirect Fire Crewman).  He was honorably discharged from the ARNG in the rank/grade of SGT/E-5 on 20 March 1973.  He again enlisted in the NJRARNG in the rank/grade of SGT/E-5 on 4 April 1976 and he was honorably discharged on 3 April 1980.

4.  He again enlisted in the NJARNG in the rank of SGT/E-5 on 19 June 1985. He subsequently served through a series of extensions or reenlistments and in various staff positions in MOS 91B (Medical Specialist).

5.  Orders 248-019, issued by the NJARNG, dated 4 September 1995, reduced him from SGT/E-5 to SPC/E-4 effective 1 September 1995 by reason of inefficiency.

6.  On 11 July 1996, the NJARNG issued him a Notification of Eligibility for Retired Pay at Age 60 (20-Year letter).

7.  Orders 204-043, issued by the NJARNG, dated 22 July 1996, honorably discharged him from the ARNG in the rank/grade of SPC/E-4 and transferred him to the Retired Reserve effective 15 July 1996.

8.  He was honorably discharged from the ARNG on 15 July 1996 and he was transferred to the Retired Reserve.  His National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows he completed 20 years,
8 months, and 19 days of total service for pay.  It also shows the following entries:

* Items 5a (Rank) and 5b (Pay Grade) - the entries SPC and E-4
* Item 6 (Date of Rank) - "85  06  19"

9.  Orders P08-909405, issued by the U.S. Army Human Resources Command, St. Louis, MO, dated 21 August 2009, retired the applicant and placing him on the Retired List in his retired rank/grade of SPC/E-4, effective 20 September 2009, the date he turned 60.

10.  The applicant submitted various certificates, some of which listed his rank as SGT.

11.  Title 10, U.S. Code, section 1406 governs the retired pay base for members who first became members before 8 September 1980.  In the case of a person who is entitled to retired pay under section 12731 of this title, the retired pay base is the monthly basic pay, determined at the rates applicable on the date when retired pay is granted, of the highest grade held satisfactorily by the person at any time in the armed forces.  

12.  Title 10, U.S. Code, section 12731, states 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 of this title.

13.  Army Regulation 135-180 (Qualifying Service for Retired Pay Nonregular Service) states, in pertinent part, that 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 any of the following factors exist:

* 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
* there is information in the Soldier’s service record to indicate clearly that the highest grade was not served satisfactorily

14.  National Guard Regulation 600-200 (Enlisted Personnel Management) establishes the standards, policies and procedures for the management of ARNG enlisted Soldiers and specifically the policy for enlisted promotion, appointment, and reduction.  Paragraph 6-44 of the version in effect at the time stated Soldiers could be reduced for inefficiency.  Inefficiency is defined not only as technical incompetence but also as patterns or acts of conduct demonstrating that the Soldier concerned lacks the abilities and qualities required and expected of a Soldier of his or her rank and experience.  Commanders may consider any misconduct, to include a record of unexcused absences or unsatisfactory participation, as evidence of inefficiency.

DISCUSSION AND CONCLUSIONS:

1.  The applicant served honorably in the USMC from 19 July 1968 to 18 July 1972.  He attained the rank/grade of SGT/E-5 on 1 December 1971.  

2.  He also enlisted and served in the NJARNG in the rank/grade of SGT/E-5 from 21 March 1973 to 20 March 1973 and from 4 April 1976 until he was honorably discharged on 3 April 1980.  
3.  He enlisted in the NJARNG on 19 June 1985 for a third time and he served continuously until he was transferred to the Retired Reserve on 15 July 1996.  It was not until 1 September 1995 that he was reduced for inefficiency.

4.  Discounting his honorable and satisfactory service in the rank/grade of SGT/E-5 while in the USMC and twice in the ARNG is a clear injustice to him.  It appears he has met the statutory and regulatory requirements to retire in the higher grade and his records should be corrected to show he was placed on the retired list in the rank/grade of SGT/E-5 with entitlement to any due back retired pay 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 he was retired on 20 September 2009 in the rank/grade of SGT/E-5;

	b.  showing he is entitled to receive retired pay in that grade as of
20 September 2009, the date he was placed on the Retired List; and

	c.  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)                                         AR20120003466



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ABCMR Record of Proceedings (cont)                                         AR20120003466



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