IN THE CASE OF:	  

		BOARD DATE:  16 October 2012

		DOCKET NUMBER:  AR20120006244 


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 in the rank of sergeant first class (SFC)/pay grade E-7.

2.  The applicant states he was ordered to active duty in 2009 as an Army National Guard of the United States (ARNGUS) Soldier in support of Operation Iraqi Freedom (OIF).  Upon completion of the required active service, he was immediately recalled to active duty in "sanctuary" status through 30 April 2011.

   a.  He was placed on the Retired List effective 1 May 2011 in the rank of staff sergeant (SSG)/pay grade E-6.  

   b.  He had previously served on active duty from 1980 to 1995 during which time he attained the rank of SFC (E-7).

   c.  He recently received correspondence from the recorder of the Army Grade Determination Review Board (AGDRB) informing him that it appears he should have been placed on the Retired List in the grade of E-7 and he should apply to the Army Board for Correction of Military Records (ABCMR) for review of his case.

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

* promotion orders
* active duty orders
* separation/discharge orders
* two DD Forms 214 (Certificate of Release or Discharge from Active Duty)
* AGDRB correspondence

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army (RA) on 12 August 1980.  He was awarded military occupational specialty 67T (UH-60 Helicopter Repairer).

2.  He reenlisted in the RA on 15 April 1983 and continued to serve on active duty through 29 July 1995.

3.  U.S. Total Army Personnel Command, Alexandria, VA, Order Number 187-12, dated 30 September 1992, promoted the applicant to SFC/E-7 effective and with a date of rank (DOR) of 1 November 1992.

4.  Four DA Forms 2166-7 (NCO Evaluation Reports), spanning the period July 1992 through June 1995, show the applicant performed duties in the rank of SFC/E-7.  The raters all evaluated his overall potential for promotion and/or service in positions of greater responsibility as "Among the Best" and the senior raters all evaluated his overall performance as "Successful" and overall potential for promotion and/or service in positions of greater responsibility as "Superior."

5.  A DD Form 214 shows the applicant entered active duty this period on
12 August 1980 and he was honorably discharged on 29 July 1995 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), chapter 4, based on completion of required active service.

   a.  He had completed 14 years, 11 months, and 18 days of net active service this period.

   b.  It also shows in:

* item 4a (Grade, Rate, or Rank):  "SFC"
* item 4b (Pay Grade):  "E7"
* item 12 (Record of Service), block h (Effective Date of Pay Grade):  "92 11 01" (i.e., 1 November 1992)

6.  The applicant's military personnel records show he had a break in service from 30 July 1995 through 27 October 1998.

7.  The applicant enlisted in the ARNGUS and Montana Army National Guard (MTARNG) on 28 October 1998 in the rank of sergeant (SGT)/pay grade E-5.

8.  MTARNG, Helena, MT, Orders 355-001, dated 20 December 2000, promoted the applicant to SSG/E-6 effective and with a DOR of 1 December 2000.

9.  On 22 November 2004, the Deputy J-1/Director Army Personnel, Joint Force Headquarters - Montana, Helena, MT, notified the applicant that his eligibility for retired pay had been established upon attaining age 60.  An accompanying ARNG Retirement Points History Statement, dated 22 November  2004, shows the highest grade the applicant held was E-7.

10.  U.S. Army Human Resources Command (USA HRC), St. Louis, MO, memorandum, dated 1 December 2009, subject:  Sanctuary Eligibility Status, shows the Mobilization Support Branch confirmed the applicant would have
18 years, 6 months, and 2 days of Active Federal Service (AFS) as of 4 March 2010.  It also shows he was eligible for Sanctuary and would enter that status to complete 20 years of AFS upon his release from active duty (REFRAD).

11.  A DD Form 214 shows the applicant was ordered to active duty on
29 January 2009 in support of OIF and honorably REFRAD on 13 February 2010 under the provisions of Army Regulation 635-200, chapter 4, based on completion of required active service.

   a.  He completed 1 year and 15 days of net active service this period that included service in Iraq from 8 April 2009 to 16 January 2010.

   b.  It also shows in:

* item 4a:  "SSG"
* item 4b:  "E06"
* item 12:  "2000 12 01" (i.e., 1 December 2000)

12.  Joint Forces Headquarters - Montana, Office of the Adjutant General, Fort Harrison, MT, Orders 055-011, dated 24 February 2010, honorably discharged the applicant from the MTARNG effective 14 February 2010 for the purpose of enlisting in the active component of the U.S. Army.

13.  A National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows the applicant was honorably discharged from the ARNGUS and MTARNG effective 14 February 2010.  He had completed 11 years, 3 months, and 17 days of net service this period; 15 years, 3 months, and 18 days of prior AFS; and 27 years, 4 months, and 4 days of total service for pay.


14.  USA HRC, St. Louis, MO, Orders A-01-003063, dated 26 January 2010, as amended by Orders A-01-003063A01, dated 10 August 2010, ordered the applicant to active duty in the rank of SSG/E-6 on 14 February 2010 for a period of 441 days (ending 30 April 2011).

15.  Headquarters, III Corps, Fort Hood, TX, Orders 271-0139, dated
28 September 2010, show the applicant was REFRAD on 30 April 2011 and placed on the Retired List in the rank of SSG/E-6 effective 1 May 2011.  He completed 20 years and 19 days of active service for voluntary retirement.
It also shows the statute authorizing retirement was Title 10 U.S. Code (USC), section 3964.

16.  A DD Form 214 shows the applicant entered active duty this period on
14 February 2010; honorably retired from active duty on 30 April 2011, under the provisions of Army Regulation 635-200, chapter 12, based on sufficient service for retirement; and transferred to the U.S. Army Reserve Control Group (Retired) effective 1 May 2011.

   a.  He completed 1 year, 2 months, and 17 days of net active service this period; 18 years, 10 months, and 2 days of total prior active service; and 8 years, 6 months, and 2 days of total prior inactive service.

   b.  It also shows in:

* item 4a:  "SSG"
* item 4b:  "E06"
* item 12, block h:  "2000 12 01"

17.  In support of his application, the applicant provides a copy of Army Review Boards Agency (ARBA), memorandum, dated 26 February 2012, ARBA Case Number:  AR20120002399, that shows the Recorder, AGDRB, informed the applicant that it appears that he should have been placed on the Retired List in the grade of E-7 under the provisions of 10 USC 3963 (vice 10 USC 3964).  Thus, he should apply to the ABCMR for review of his case.  He was also advised that, in the event the ABCMR is unable to correct his records, he could reapply to the AGDRB after he reached his 30-year point (when time on active duty plus time on the Retired List equals 30 years).

18.  10 USC, section 3914 (Twenty to thirty years:  enlisted members), provides that under regulations to be prescribed by the Secretary of the Army, an enlisted member of the Army who has at least 20, but less than 30, years of service computed under section 3925 of this title, may, upon his request, be retired.
19.  10 USC, section 3963 (Highest grade held satisfactorily:  Reserve enlisted members reduced in grade not as a result of the member's misconduct), provides that a Reserve enlisted member of the Army described in subsection 
(b) who is retired under section 3914 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.  Subsection b applies to a Reserve enlisted member who (1) at the time of retirement is serving on active duty (or, in the case of a member of the National Guard, on full-time National Guard duty) in a grade lower than the highest enlisted grade held by the member while on active duty (or full-time National Guard duty), and (2) 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 with respect to Reserve enlisted members who are retired under section 3914 of this title after September 30, 1996. 

20.  10 USC, section 3964 (Higher grade after 30 years of service:  warrant officers and enlisted members), provides that each retired member of the Army covered by subsection (b) who is retired with less than 30 years of active service is entitled, when his active service plus his service on the Retired List totals
30 years, to be advanced on the Retired List to the highest grade in which he served on active duty satisfactorily (or, in the case of a member of the National Guard, in which he served on full-time duty satisfactorily), as determined by the Secretary of the Army.  This section applies to (1) warrant officers of the Army; (2) enlisted members of the Regular Army; and (3) reserve enlisted members of the Army who, at the time of retirement, are serving on active duty (or, in the case of members of the National Guard, on full-time National Guard duty).

21.  Department of Defense (DoD) Financial Management Regulation, 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, in pertinent part, 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.


22.  Army Regulation 635-5 (Personnel Separations - Separation Documents) states that the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty and will be prepared for Soldiers upon release from active duty, discharge, retirement, or control of the Active Army.  It also establishes standardized policy for preparing and distributing the DD Form 214.

	a.  Chapter 2 contains guidance on the preparation of the DD Form 214.  It states the source documents for entering information on the DD Form 214 will be the Officer/Enlisted Record Brief, separation approval authority documentation, separation orders, or any other document authorized for filing in the military personnel record.

	b.  Paragraph 2-4 (Completing the DD Form 214) contains item-by-item instructions for completing the DD Form 214.  It states for item 18 (Remarks), in part, specify the grade (indicated on the retirement order) to which Soldier will be advanced on the retired list; enter "RETIRED LIST GRADE" and specify appropriate grade.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show he retired in the rank of SFC/E-7 because the highest grade he successfully held while on active duty was SFC/E-7.

2.  Records show the applicant served on active duty in the RA in an enlisted status and he was promoted to SFC/E-7 on 1 November 1992.  He was honorably discharged from the RA in the rank of SFC/E-7 on 29 July 1995.

3.  He had a break in service from 30 July 1995 through 27 October 1998.

4.  He enlisted in the ARNGUS on 28 October 1998 in the rank of SGT/E-5 and he was promoted to SSG/E-6 on 1 December 2000.

5.  On 29 January 2009, he was ordered to active duty, in the rank of SSG/E-6 in support of OIF and he was honorably discharged on 13 February 2010.  On
14 February 2010, he was continued on active duty in a sanctuary status to complete 20 years of AFS.

6.  Records show the applicant was honorably retired from active duty (under the provisions of 10 USC 3914) on 30 April 2011 based on sufficient service for retirement and he was placed on the Retired List in the rank of SSG/E-6 effective 1 May 2011.

7.  10 USC, section 3963, in pertinent part, provides that a National Guard enlisted member, on full-time National Guard duty, in a grade lower than the highest enlisted grade held by the member while on full-time National Guard duty, and 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, shall be retired in the highest enlisted grade in which the member served on active duty.  Therefore, in view of the foregoing, it would be appropriate to correct the applicant's records to show he was honorably retired, in the rank of SFC/E-7, effective 1 May 2011.

BOARD VOTE:

___X____  ____X __  ____X___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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 amending Headquarters, III Corps, Fort Hood, TX, Orders 271-0139, dated
28 September 2010, as follows:

   a.  as reads:

* Retired grade of rank:  SSG 
* Statute authorizing retirement:  3964

   b.  is amended to read:

* Retired grade of rank:  SFC/E-7
* Statute authorizing retirement:  3914 


2.  Adding to item 18 of his 30 April 2011 DD Form 214 "RETIRED LIST GRADE:  SFC/E-7."




      __________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)                                         AR20120006244



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ABCMR Record of Proceedings (cont)                                         AR20120006244



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