IN THE CASE OF:	  

		BOARD DATE:  30 July 2013

		DOCKET NUMBER:  AR20130000541 


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:

* enlisted in the Maryland Army National Guard (MDARNG) in May 2002 and subsequently entered active duty in February 2003 in the rank/grade of sergeant first class (SFC)/E-7
* he held the rank/grade of SFC/E-7 from date of entry until he retired on 30 September 2005
* payment of any monies as a result of this correction

2.  The applicant states:

	a.  He previously served in the Regular Army from March 1979 to October 1992 and he attained the rank/grade of SFC/E-7.  In 2003, he was placed back on Federal active duty during Operation Iraqi Freedom.  However, he was placed back in the rank/grade of staff sergeant (SSG)/E-6 despite having previously held and served in the rank/grade of SFC/E-7.  While serving on active duty, he attained over 18 years of active service and he was granted sanctuary for retirement purposes.  

	b.  He retired from active duty in October 2005 and started inquiring about the retired rank issue but did not pursue it.  He now has no access to any Army regulations and he asks this Board to investigate the issue.  He feels that when he returned to Federal service, he should have been accessed as an SFC/E-7 and should have held that rank until retirement.  Although he ultimately retired as an SFC/E-7, he feels during the period of coming back on active duty until retirement he should have held and should have been paid as an E-7.  He feels he lost a lot of money and requests an investigation.  

3.  The applicant provides Orders 066-00434, dated 7 March 2003, and Orders A-09-300982, dated 15 September 2003. 

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 complete Regular Army service records are not available for review with this case.  The available record, consisting of a DD Form 214 (Certificate of Release or Discharge from Active Duty) shows:

	a.  He had 3 years, 6 months, and 20 days of prior active service before he reenlisted in the Regular Army on 30 March 1979.  He served through multiple reenlistments or extensions in a variety of stateside or overseas assignments and he attained the rank/grade of SFC/E-7 on 1 June 1986.

	b.  He was honorably discharged on 23 October 1992 by reason of the Qualitative Management Program.  He completed 13 years, 6 months, and 24 days of active service.

3.  The applicant's complete MDARNG first enlistment service records are not available for review with this case.  The available record, consisting of a National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service), shows:

	a.  He enlisted in the MADARNG on 14 February 1994 and he held military occupational specialty (MOS) 19D (Cavalry Scot).  He held the rank/grade of SSG/E-6 with a date of rank of 25 September 1980.

	b.  He was discharged with a general discharge on 12 August 1997 as an unsatisfactory participant.  He completed 3 years, 5 months, and 29 days of inactive service.  

4.  After a break in service, he enlisted in the rank/grade of SSG/E-6 in the MDARNG on 31 May 2002.  He was awarded MOS 11B (Infantryman).  He was assigned to the 1st Battalion, 175th Infantry, MDARNG. 

5.  On 25 February 2003, he was ordered to active duty as a member of the Pennsylvania Army National Guard (PAARNG) in support of Operation Enduring Freedom.  

6.  On 10 September 2003, the U.S. Total Army Personnel Command, Alexandria, VA, approved his request for Sanctuary and subsequent release from active duty on 30 September 2003.  He was eligible for Sanctuary and would enter Title 10, U.S. Code, Section 12301(d) status to complete 20 years of Active Federal Service (AFS).  

7.  He was honorably released from active duty on 30 September 2003, and from the PAARNG, and transferred to the U.S. Army Reserve Control Group (Reinforcement).  He completed 7 months and 6 days of active service during this period.  His DD Form 214 shows in:

* Item 4a (Grade, Rate, or Rank) - SSG
* Item 4b (Pay Grade) - E-6
* Item 12h (Effective Date of Pay Grade) - 2002-05-01

8.  He again entered active duty on 1 October 2003 and completed 1 year, 11 months, and 20 days, before he was retired on 30 September 2005 and placed on the Retired List in his retired rank/grade of SFC/E-7.  His DD Form 214 shows in:

* Item 4a (Grade, Rate, or Rank) - SSG
* Item 4b (Pay Grade) - E-6
* Item 12h (Effective Date of Pay Grade) - 2002-05-01

DISCUSSION AND CONCLUSIONS:

1.  The applicant served in the Regular Army from 30 March 1979 to 23 October 1992.  He attained the rank/grade of SFC/E-7 on 1 June 1986 and he held this rank/grade at the time of his discharge.  

2.  He enlisted in the MDARNG - the first time - on 14 February 1994.  He did so in the rank/grade of SSG/E-6 and he was discharged on 12 August 1997.  After a break in service, he enlisted in the MDARNG a second time on 31 May 2002, also in the rank/grade of SSG/E-6.  When he deployed with his unit, he did so in the rank/grade of SSG/E-6 because that was the rank/grade he held at the time.  

3.  The fact that he previously held the rank/grade of SFC/E-7 is important in determining his retirement grade but is not as important in his enlistment in the ARNG process since his enlistment in the ARNG was contingent on many factors, including being qualified, the availability of a position and/or a unit, and many other factors.  

4.  When he enlisted in the ARNG as a SSG/E-6, he was ordered to active duty in support of contingency operations in whatever rank/grade he held at the time, i.e., SSG/E-6.  The fact that he was mobilized is not relevant in reclaiming his previous rank/grade of SFC/E-7.  There is no evidence he was selected or promoted to SFC/E-7 since his entry into the ARNG or while mobilized.  As such, his records correctly reflected his rank/grade of SSG/E-6 at the time he retired.  

5.  There is neither an error nor an injustice in the applicant's case.  In view of the foregoing, the applicant is not entitled to any of 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)                                         AR20130000541





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ABCMR Record of Proceedings (cont)                                         AR20130000541



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