BOARD DATE:	  11 July 2013

		DOCKET NUMBER:  AR20120022348 


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, in effect, correction of his records to show he was placed on the Retired List in the rank/grade of sergeant (SGT)/E-5 vice specialist (SPC)/E-4.

2.  The applicant states he should have had his E-5 back before he retired.  The company and battalion failed to send the paperwork in for him to receive his E-5. 

3.  The applicant provides a DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), a DA Form 4187 (Personnel Action), and a DA Form 2142 (Pay Inquiry).

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.  Having had both active and Reserve service, the applicant's records show he was promoted to the rank/grade of SGT/E-5 on 1 August 1990.  He entered active duty as a member of the U.S. Army Reserve (USAR) on 19 March 2000.  He was assigned to the Headquarters Service Company (HSC), 844th Engineer Battalion, Gray, TN. 

3.  The applicant provided and his records contain a DA Form 2627, dated 10 August 2005, wherein it shows he received nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ for disobeying a lawful order by wrongfully consuming alcohol on or near Camp Arifjan, Kuwait, on or about 13 July 2005.

4.  The punishment imposed was reduction to SPC/E-4, forfeiture of $978 per month for 2 months, extra duty for 45 days, and restriction for 45 days.  The forfeiture, extra duty, and restriction were suspended, to be automatically remitted if not vacated before 1 December 2005.  He was accordingly reduced to SPC/E-4.

5.  The applicant provided a DA Form 4187, dated 20 June 2006, from his company commander thru the Commander, 844th Engineer Battalion and the Commander, 3397th Garrison Support Command, to the 81st Regional Readiness Command, wherein it states "According to DA Form 2627, Record of Proceedings under Article 15, UCMJ, is suspended and automatically remitted if not vacated before 1 December 2005.  Reduction for [The Applicant] to SPC/E-4 has been lifted.  Effective date of promotion to SGT/E-5 is 1 December 2005."  

6.  The applicant also provided a DA Form 2142, dated 20 September 2006, signed by the applicant and his company commander, wherein it states "Per attached DA Form 2627, Record of Proceedings under Article 15, UCMJ, Soldier is to be reinstated to his previous rank of E-5 on 1 December 2005 with a date of rank (DOR) of 1 December 2005.  This form does not show it was ever processed or received by the Defense Finance and Accounting Service.

7.  Orders C-10-691676, dated 4 October 2006, issued by the U.S. Army Resources Command (HRC) released him from active duty effective 31 January 2007 and placed him on the Retired List on 1 February 2007 in the rank/grade of SPC/E-4, in accordance with Title 10, U.S. Code, section 3914.  These orders show his rank as SPC and the effective date of his current grade as 10 August 2005.


8.  He was honorably retired on 31 January 2007 and transferred to the U.S. Army Reserve Control Group (Retired).  He was placed on the Retired List in the rank/grade of SPC/E-4 on 1 February 2007.  

9.  Items 4a (Grade, Rate or Rank) and 4b (Pay Grade) of the DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued for this period of service contain the entries "SPC" and "E-4," respectively.

10.  Title 10, U.S. Code, section 3914 states 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. 

11.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.  

	a.  Paragraph 12-3 states Soldiers of the Regular Army must be on active duty when they retire.  There is no statutory requirement that Army National Guard or U.S. Army Reserve Soldiers be on active duty when they retire.  Retirement normally will be in the regular or reserve grade the Soldier holds on the date of retirement (Title 10, U.S. Code, section 3963).

	b.  For the purpose of Title 10, U.S. Code, section 3963, the highest grade held satisfactorily pertains to Reserve enlisted members reduced in grade not as a result of the member’s misconduct.

12.  Title 10, U.S. Code, section 3963 (Highest grade held satisfactorily: Reserve enlisted members reduced in grade not as a result of the member's misconduct) states in:

	a.  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 as determined by the Secretary of the Army.

	b.  This section applies to a Reserve enlisted member who (1) 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; 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.

	c.  This section applies with respect to Reserve enlisted members who are retired under section 3914 of this title after 30 September 1996.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of confirms that on 10 August 2005, as a result of NJP imposed under the provisions of Article 15, UCMJ, the applicant was reduced from SGT to SPC.  Although his immediate commander may have misread the DA Form 2627 and submitted a request for his rank to be reinstated to SGT, his DA Form 2627 clearly shows that only the portion of the NJP that pertained to forfeiture, extra duty, and restriction was suspended, to be automatically remitted if not vacated before 1 December 2005.  Therefore, his rank was not reinstated to SGT as there was no basis to do so.

2.  The DD Form 214 he was issued on 31 January 2007 correctly reflects his rank/grade as SPC/E-4; the rank/grade he held at the time of his release from active duty.  

3.  On 1 February 2007, he was placed on the Retired List in the rank of SPC.  By law, a Soldier is placed on Retired List in the highest grade satisfactorily held. As he was reduced from SGT to SPC as a result of NJP, he did not satisfactorily serve as a SGT/E-5.  He was correctly placed on the Retired List in the rank of SPC.

4.  In view of the foregoing, he is not entitled to the requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ___X____  ___X_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case 



are insufficient as a basis for correction of the records of the individual concerned.



      _______ _   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)                                         AR20120022348





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ABCMR Record of Proceedings (cont)                                         AR20120022348



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