IN THE CASE OF:	  

		BOARD DATE:	  10 January 2013

		DOCKET NUMBER:  AR20120005773 


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 adjustment of his retirement grade from sergeant first class (SFC)/E-7 to first sergeant (1SG)/E-8.

2.  The applicant states he should have been retired as a 1SG/E-8.

3.  The applicant provides the following documents in support of his request:

* 1SG/E-8 promotion orders, dated 18 September 1978
* reduction orders to SFC/E-7, dated 24 February 1982
* master sergeant (MSG)/E-8 promotion orders, dated 20 April 1985
* reassignment orders, dated 23 July 1986
* State Army National Guard (ARNG) Active Guard Reserve (AGR) orders in the rank of SFC, dated 22 August 1986
* transfer orders, dated 27 August 1986
* release from active duty orders, dated 10 January 2005
* retirement orders, dated 10 January 2005
* DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 30 November 2005
* senior legal advisor letter, dated 17 November 2009



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 record shows he initially enlisted in the ARNG on 18 November 1966.  He served in various capacities in the ARNG and U.S. Army Reserve (USAR) through 30 November 2005 at which time he retired from active duty while serving in an AGR status.

3.  The applicant's record contains orders promoting him to 1SG on 18 September 1978 while serving in the Washington ARNG.  The record contains orders, dated 24 February 1982, which administratively reduced the applicant to SFC/E-7 effective 18 February 1982.

4.  On 6 February 1983, the applicant enlisted in the USAR.  The DD Form 4 (Enlistment/Reenlistment Document – Armed Forces of the United States) documenting this enlistment confirms he enlisted in the rank/grade of SFC/E-7.

5.  The applicant's record contains orders promoting him to MSG/E-8 in the USAR effective 16 June 1984.

6.  On 30 June 1986, the applicant again enlisted in the Washington ARNG.  The DD Form 4 prepared for this enlistment confirms the applicant enlisted in the rank/grade of SFC/E-7.

7.  The record contains an ARPC Form 249-E (Chronological Statement of Retirement Points) that shows the applicant earned a total of 100 active duty points (days) while holding the grade of MSG between 
18 September 1978 and 18 February 1982, and 0 active duty points (days) during the period he held the grade of MSG between 16 June 1984 and 29 June 1986.  

8.  On 18 August 1986, the applicant was transferred from the Washington ARNG to the Nebraska ARNG and ordered to AGR duty in the rank of SFC.

9.  On 30 November 2005, the applicant was honorably retired in the rank/grade of SFC/E-7.  The DD Form 214 he was issued shows he completed a total of 20 years, 8 months, and 8 days of active military service.

10.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth policy and procedures for the separation of enlisted personnel.  Chapter 12 contains guidance on retirement.  Paragraph 12-3b(1) states retirement normally will be in the regular or reserve grade the Soldier holds on the date of retirement.  As an exception, ARNGUS and USAR Soldiers serving on active duty at the time of retirement in a grade lower than their highest active duty enlisted grade, who were administratively reduced in grade not as a result of their own misconduct, will retire at the highest enlisted grade in which they served satisfactorily on active duty.  Paragraph 12-8 contains guidance on service obligations and states a member promoted to the grade of sergeant first class (SFC) master sergeant (MSG) or sergeant major/command sergeant major (SGM/CSM) incur a 2 year active duty service obligation.  

11.  Army Regulation 15-80 (Army Grade Determination Review Board and Grade Determinations) establishes policies, procedures, and responsibilities of the Army Grade Determination Review Board (AGDRB) and other organizations delegated authority to make grade determinations on behalf of the Secretary of the Army (SA).  It states active duty service obligations as outlined in the governing regulations will be considered in making satisfactory service determinations.  The example that members promoted to SFC, MSG, and SGM (CSM) incur a two year service obligation is used.  

12.  Title 10 of the United States Code, Section 101 (Definitions) defines the term  active duty in paragraph d (1) as full-time duty in the active military service of the United States. Such term includes full-time training duty, annual training duty, and attendance, while in the active military service, at a school designated as a service school by law or by the Secretary of the military department concerned. Such term does not include full-time National Guard duty.  The term “active status” means the status of a member of a reserve component who is not in the inactive Army National Guard or inactive Air National Guard, on an inactive status list, or in the Retired Reserve.



13.  Title 10 of the United States Code, Section 3963 (Highest grade held satisfactorily: Reserve enlisted members reduced in grade not as a result of the member’s misconduct) states a Reserve enlisted member of the Army who is retired under section 3914 (Twenty to thirty years: enlisted members) of this title shall be retired in the highest enlisted grade in which the member served on active duty satisfactorily (or, in the case of a member of the National Guard, in which the member served on full-time National Guard duty satisfactorily), as determined by the Secretary of the Army.  This applies to a Reserve member, who at the time of retirement is serving on active duty in a grade lower than the highest enlisted grade held by the member while on active duty who was previously administratively reduced in grade not as a result of the member’s own misconduct, as determined by the Secretary of the Army.  This section applies to Reserve enlisted members who are retired under Section 3914 of this title after 30 September 1996.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his retired grade be changed to 1SG/E-8 has been carefully considered.  However, there is insufficient evidence to support this claim.  By law, retirement in the highest grade held and advancement on the Retired List are contingent on the member having satisfactorily served on active duty in the higher grade.  

2.  Members promoted to SFC, MSG, and SGM (CSM) incur a 2 year active duty service obligation that must be completed prior to retirement.  Members of a Reserve Component who are retiring under 10 USC 3914 may be retired in the highest grade in which they satisfactorily served on active duty if they were reduced for administrative reasons, not as a result of misconduct.  However, this is subject to a satisfactory service determination. 

3.  In order to support a change to the applicant's grade at the time of retirement or his advancement on the Retired List, there must be evidence that the applicant completed the satisfactory service requirement to complete 2 years of active duty service in the higher grade of MSG.  A review of his ARPC Form 249-E shows that while holding the grade of MSG between 18 September 1978 and 
24 February 1982, he earned a total of 100 active duty points (days) as defined in 10 USC 101d (1), and while holding the grade of MSG in the USAR between 16 June 1984 and 29 June 1986, he earned 0 active duty points (days).  



4.  Further, the evidence of record and independent evidence submitted by the applicant while showing he was twice promoted to 1SG/MSG and twice administratively reduced to SFC, not due to his own misconduct, while serving in the USAR and ARNG not on active duty, it indicates he completed only 100 days of active duty service during the periods he served as a MSG/1SG.  The record further shows he entered active duty in an AGR status as a SFC and never held the grade of MSG/1SG during this period of active duty service.  

5.  The evidence of record fails to show he completed the necessary two years of active duty service necessary for a satisfactory service determination in the grade of 1SG/MSG.  As a result, absent any error or injustice related to the satisfactory service determination made by the retirement approval authority at the time of the applicant's retirement, there is an insufficient evidentiary basis to support either a change to the grade in which he was retired on 30 November 2005, or to support his advancement in grade on the Retired List on 22 March 2015, when his active duty time and time on the Retired List totals 30 years.

BOARD VOTE:

__X____  __X_____  ____X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  Notwithstanding the staff DISCUSSION AND CONCLUSIONS above, the Board believes the evidence is sufficient to show the applicant’s retired grade of rank as first sergeant/E-8. 

2.  The analyst noted the evidence of record failed to show he completed the 2 years of active duty service necessary for a satisfactory service determination in the grade of 1SG/MSG.  The Board believes the applicant served satisfactorily as a first sergeant on active duty and as an active member of the USAR.  Therefore, it would be appropriate to retire this member as a first sergeant and place him on the retired rolls as such. 



3.  As a result, the Board determined the evidence presented is sufficient to warrant a recommendation for the requested relief of retiring him the grade of rank of first sergeant/E-8 and placing him on the retired rolls as such.



      ___________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)                                         AR20120005773



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ABCMR Record of Proceedings (cont)                                         AR20120005773



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