IN THE CASE OF:	  

		BOARD DATE:	  25 June 2013

		DOCKET NUMBER:  AR20120019207 


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 restoration of his rank/grade to sergeant first class (SFC)/E-7, the highest rank/grade in which he satisfactorily served in the Army National Guard (ARNG).

2.  The applicant states:

   a.  He served honorably and faithfully for 21 years, 4 months, and 15 days in the ARNG and held the rank/grade of SFC/E-7 for 11 years and 2 months.  He served in the Active Guard Reserve (AGR) for 10 years.  It was during this period, while serving as a Military Police Unit Training Noncommissioned Officer, he was reduced to the rank/grade of private (PVT)/E-1, for a civilian conviction of driving while intoxicated (DWI). 

   b.  He received numerous awards and decorations, was eligible for promotion to master sergeant, and feels he is entitled to grade E-7 retirement pay even though he was reduced to PVT/E-1 on his last day of service.  He further states off-duty alcohol consumption was acceptable and a military way of life in the 1980's.  He was not given the opportunity to attend alcohol treatment/rehabilitation at the time and believes he should have been given a voluntary separation and not reduced in grade in light of his 20 plus years of service.

3.  The applicant provides:

* a self-authored statement
* 3 letters
* United States Uniformed Services Identification Card
* DD Form 4 (Enlistment Contract - Armed Forces of the United States)
* Orders 70-1
* Arkansas Military Academy Diploma
* Permanent Orders 23-1
* Orders 189-131
* Orders 275-7
* 3 DA Forms 2166-6 (Enlisted Evaluation Report)
* 3 DA Forms 2166-7 (Noncommissioned Officer Evaluation Report)
* DA Form 2-1 (Personnel Qualification Record)
* VA Form 29-8286 (Servicemen's Group Life Insurance Election)
* DA Form 4836 (Oath of Extension of Enlistment or Reenlistment)
* DA Form 873 (Certificate of Clearance and/or Security Determination)
* 2 DA Forms 2446 (Request for Orders)
* Orders 256-027
* 2 National Guard Bureau (NGB) Forms 23B (Army National Guard Retirement Points History Statement)
* 2 memoranda
* 1 Leave and Earnings Statement
* Orders 257-007
* NGB Form 22 (Report of Separation and Record of Service)
* DD Form 1883 (Survivor Benefit Plan Election Certificate)
* DD Form 214 (Certificate of Release or Discharge From Active Duty)
* DD Form 215 (Correction to DD Form 214)
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Orders P10-928529
* DD Form 363A (Certificate of Retirement)

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 11 October 1950.  He enlisted in the Missouri    ARNG (MOARNG) on 21 April 1969.  He successfully completed training and held military occupational specialty 95B (Military Policeman).  He subsequently served through a series of reenlistments or extensions, performing duties in various positions in Missouri.  The highest rank/grade he attained while serving in the MOARNG was SFC/E-7.  However, at the time of his discharge he held the rank/grade of PVT/E-1.

3.  Item 18 (Appointments and Reductions) of his DA Form 2-1 shows he was promoted to the rank/grade of SSG/E-6 on 17 April 1973.  On 5 July 1979, he was promoted to the rank/grade of SFC/E-7.  

4.  Orders 275-7, issued by Headquarters, MOARNG, Office of the Adjutant General, dated 11 October 1988, ordered the applicant to full-time ARNG duty in the AGR effective 17 November 1988.

5.  The applicant provides a DA Form 2446, dated 12 September 1990, which shows orders were requested to reduce him in rank/grade from SFC/E-7 to PVT/E-1 for misconduct.  

6.  His record contains a DD Form 214 which shows he was involuntarily separated in the rank/grade of PVT/E-1 on 4 September 1990 and that he received a general discharge for civilian conviction and confinement.

7.  Orders 257-007, issued by Headquarters, MOARNG, Office of the Adjutant General, dated 14 September 1990 reduced him in rank/grade from SFC/E-7 to PVT/E-1 for misconduct.

8.  The applicant provides an NGB Form 22 which shows he was discharged           without personal notice for being dropped from the rolls of the Army.

9.  Orders P10-928529, issued by the U.S. Army Human Resources Command, dated 19 October 2010, placed the applicant on the Retired List on 11 October 2010, in the retired rank/grade of PVT/E-1.

10.  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.

11.  Department of Defense 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 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.

12.  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.

13.  Army Regulation 135-180, paragraph 1-4, states that retired pay is pay granted to Soldiers and former Reserve Component 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 a Reserve Component.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests restoration of his rank/grade to SFC/E-7, the highest rank/grade in which he satisfactorily served in the MOARNG.

2.  By regulation, members of the Armed Forces are entitled to be placed on the Retired List in the highest grade in which they satisfactorily served.  However, in the applicant's case, he did not satisfactorily serve in the rank/grade of SFC/E-7.  Evidence in the applicant's record shows he received a civilian conviction, was dropped from the rolls of the Army, and was subsequently reduced for misconduct from the rank/grade of SFC/E-7 to PVT/E-1.  A civilian conviction and subsequent reduction (apparently for DWI) clearly indicates his service in the rank/grade of SFC/E-7 was not served satisfactorily.

3.  However, the evidence of record shows the applicant was promoted to SSG/E-6 on 17 April 1973 and served in that rank/pay grade until 4 July 1979.  His record is void of any derogatory information or evidence indicating he was subjected to punishment under the UCMJ which resulted in an involuntary reduction in the rank/pay grade SSG/E-6.  

4.  In view of the foregoing, it would be equitable to correct his record to show he was retired in the rank/pay grade of SSG/E-6 effective 11 October 2010.
He is also entitled to have his retired pay entitlements recomputed based on the rank/pay grade of SSG/E-6 and to receive any back retired pay he is entitled as a result of this correction.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x___  ____x___  ____x___  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 partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  amending his retirement orders (Orders P10-928529, dated 19 October 2010) to show he was retired in the rank/pay grade of SSG/E-6 effective 11 October 2010;

	b.  Recomputing his retired pay entitlements based on the rank/pay grade of SSG/E-6; and

	c.  providing him all back retired pay he is entitled to as a result of this correction.







2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to restoration of his rank/grade to 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)                                         AR20120019207





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ABCMR Record of Proceedings (cont)                                         AR20120019207



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