BOARD DATE:	  8 October 2013

		DOCKET NUMBER:  AR20130001126 


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 was transferred to the Retired List in the rank/grade of sergeant first class (SFC)/E-7 instead of sergeant (SGT)/E-5.

2.  The applicant states he joined the U.S. Army Reserve (USAR) in 1965 and remained until 1974 when he joined the U.S. Navy Reserve (USNR).  While in the USNR he was promoted to pay grade E-7 and received his 20-year letter.  In 1991, he joined the Missouri Air National Guard (MOANG).  He was required to enlist in the MOANG in pay grade E-5.  In 1993, he enlisted in the Missouri Army National Guard (MOARNG) and he was transferred to the Retired Reserve in 1996.  Since he applied for retirement in 2002 he has been paid as an E-5 and not at his highest grade held of E-7.

3.  The applicant provides:

* his Certificate of Permanent Appointment to Chief Aviation Storekeeper (AKC) (pay grade E-7), dated 16 September 1978
* a letter, dated 10 January 1986, from the Commander, Naval Military Personnel Command (now known as Bureau of Naval Personnel (BUPERS))
* two Naval Reserve Earnings Statements for the periods September 1989 and September 1990
* Headquarters, Missouri National Guard Special Order A-43, dated 
30 January 1992
* 
Headquarters, Air Reserve Personnel Center letter, dated 16 July 1993
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) for the period ending 1 March 1996
* Headquarters, Missouri National Guard Orders 033-206, dated 
16 February 1996
* Army National Guard Retirement Points History Statement, Application for Retirement Pay, prepared on 13 May 1996
* his Armed Forces of the United States, U.S. Naval Reserve Identification Card, issued on 5 March 1988
* U.S. Army Reserve Personnel Command (now known as U.S. Army Human Resources Command (HRC)) Orders P09-280613, dated
18 September 2002

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 his date of birth as 15 July 1942.

3.  The applicant previously served in the USAR, USNR, and the MOANG.

4.  He provided his Certificate of Permanent Appointment that shows he was promoted to AKC (pay grade E-7) on 16 September 1978 in the USNR.

5.  He provided a letter from BUPERS, dated 10 January 1986, that identifies him as an AKC and notifies him he had satisfactorily completed the required years of service for retired pay at age 60 (20-year letter).

6.  The two Naval Reserve Statements he provided show he was paid in the grade of E-7 during the periods September 1989 and September 1990.

7.  He provided Headquarters, Missouri National Guard Orders A-43, dated 
30 January 1992, that reduced him without prejudice from master sergeant (E-7) to staff sergeant (E-5) effective 30 December 1991 while assigned to the MOANG.

8.  He was issued a second 20-letter on 16 July 1993 by Headquarters, Air Reserve Personnel Center.

9.  He enlisted in the MOARNG on 24 November 1993 in the grade of E-5.

10.  On 1 March 1996, he was discharged in the grade of SGT/E-5 from the MOARNG and transferred to the Retired Reserve.  He completed 30 years,
5 months, and 22 days of total service for pay.

11.  HRC Orders P09-280613, dated 18 September 2002, placed the applicant on the Retired List effective 15 July 2002 with a retired grade of SGT/E-5.

12.  Records show HRC Orders P09-280613 AO1, dated 18 September 2002, amended the applicant's retired grade from SGT/E-5 to SFC/E-7.  The applicant's Soldier Management System (SMS) file further indicates these orders were actually amended in September 2012 but dated on 19 September 2002, the same date as his original orders placing him on the Retired List.

13.  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 qualifying service as computed under section 12732 of this title.

14.  Title 10, U.S. Code, section 12731 provides the legal authority for age and service (non-regular) retirements.  Section 1406 provides the legal authority for establishing the retired pay base for members who first became members before 8 September 1980.  Paragraph (b)(2) contains guidance on non-regular service retirement.  It states, in pertinent part, that in the case of a person who is entitled to retired pay under section 12731 of this title, the retired pay base is the monthly basic pay, determined at the rates applicable on the date when retired pay is granted, of the highest grade held satisfactorily by the person at any time in the Armed Forces.

15.  Army Regulation 135-180 (Army National Guard and Army Reserve Qualifying Service for Retired Pay Non-regular 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.

DISCUSSION AND CONCLUSIONS:

1.  By law, a member granted retired pay will receive such pay in the highest grade 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 the revision to a lower grade was due to misconduct or court-martial or if there is information in the member's service record to indicate clearly that the highest grade was not served satisfactorily.

2.  In the applicant's case, the evidence of record shows he was promoted to AKC (grade E-7) while in the USNR and served in that grade for at least
12 years.  He was reduced to SGT/E-5 without prejudice in the MOANG.  Nothing in his records shows he was reduced for misconduct or any other negative/derogatory reason.

3.  As such, the evidence shows he satisfactorily held the grade of E-7 and he is entitled to correction of his record to show he was placed on the Retired List on 15 July 2002 in the retired grade of SFC (E-7).   He is also entitled to any retired pay due as a result of this correction.

BOARD VOTE:

___X__  ___X_____  __X______  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is 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

	a.  showing he was timely placed on the Retired List on 15 July 2002 in the retired rank/grade of SFC (E-7) and

	b.  paying him all retired pay due as a result of the above correction.



      _________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)                                         AR20130001126



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ABCMR Record of Proceedings (cont)                                         AR20130001126



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