BOARD DATE:	  14 November 2013

		DOCKET NUMBER:  AR20130003630 


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 the orders transferring him into the Retired Reserve to show his rank/grade as staff sergeant (SSG)/E-6 instead of sergeant (SGT)/E-5.

2.  The applicant states the orders transferring him into the Retired Reserve should have reflected the highest rank/grade he held, SSG/E-6.  Instead his grade/rank was listed as SGT/E-5.  He held the rank of SSG for 3 years.  He did not lose his rank due to nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ).  He accepted a reduction in rank from SSG to SGT when he reentered the U.S. Army Reserve (USAR) because he wanted to serve in a Military Police (MP) unit.  He was never able to attain the rank of SSG again because there were no available SSG positions in his unit.  

	a.  In 2008, he was assigned to Company B, 100th Battalion, 442nd Infantry Regiment during his deployment in support of Operation Iraqi Freedom.  He submitted his promotion packet for SSG to his unit but his unit never submitted his packet to the promotion board.  He was never counseled and his leadership did not explain why his packet was not submitted to the promotion board.  He passed the Army Physical Fitness Test and met the height and weight requirements.  

	b.  After the deployment he filed a complaint with the Army Inspector General (IG) office based in Hawaii.  The IG investigation indicated that he met the standard and that his promotion packet should have been sent forward to the promotion board.  

3.  The applicant provides:

* DA Form 1059 (Service School Academic Evaluation Report), dated 
7 April 1999
* Orders Number 1-9, dated 17 August 1990
* Orders Number 1-2, dated 17 February 1993
* Honorable Discharge Certificate, dated 26 January 1996
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending on 17 December 2002
* DD Form 214 for the period ending on 2 May 2010
* Letter, dated 6 June 2011
* Orders Number 12-201-00003, dated 19 July 2012
* Certificate of Retirement, dated 17 September 2012

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 10 March 1964.  He enlisted in the USAR on or about 24 August 1983 and held military occupational specialty (MOS) 51B (Carpentry and Masonry Specialist).  

2.  He provided Orders Number 1-9, issued by Headquarters, USAR Marianas, San Francisco (Guam), on 17 August 1990, showing he was promoted to SGT with an effective date and date of rank (DOR) of 17 August 1990.

3.  His record contains a DA Form 2166-7 (Noncommissioned Officer (NCO) Evaluation Report (NCOER)) covering the period of December 1991 through November 1992.  This NCOER shows his DOR for SGT as 17 August 1990.

4.  He provided Orders Number 1-2, issued by Headquarters, USAR Marianas, San Francisco (Guam), on 17 February 1993, showing he was promoted to SSG with an effective date and DOR of 17 February 1993.  

5.  His record contains three DA Forms 2166-7 covering the periods December 1992 through October 1993, November 1993 through October 1994, and November 1994 through October 1995.  These NCOERs show his DOR for SSG as 17 February 1993.

6.  Orders Number 26-18, issued by Headquarters, 9th USAR Command, Honolulu, HI on 26 January 1996 honorably discharged him from the USAR effective 26 January 1996.  His rank was listed as SSG.
7.  The Total Army Personnel Data Base shows, on 11 September 1997, he requested enlistment as a prior service enlistee from civilian life.  His record does not contain an enlistment contract, but does contain a DA Form 2166-7 for the period September 1997 through February 1998.  This NCOER shows his MOS as 95B (Military Police), his rank as SGT, and his DOR as 12 September 1997.

8.  His record contains a Notification of Eligibility for Retired Pay at Age 60       (20 year Letter), dated 29 September 2005.  This letter notified him he had completed the required years of service and would be eligible for retired pay upon application at age 60.

9.  He provided Orders Number 12-201-00003, issued by Headquarters, 9th Mission Support Command, Honolulu, HI, dated 19 July 2012, releasing him from his current assignment and assigning him to the Retired Reserve effective 
17 September 2012.

10.  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.

11.  Army Regulation 135-180 (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 during his entire period of service.  Service in the highest grade will not be deemed satisfactory if 
it is determined that any of the following exist:  (a) revision to a lower grade was expressly for prejudice or cause, due to misconduct, or punishment pursuant to Article 15, UCMJ, 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. 

12.  Title 10, USC, section 1406 governs the retired pay base for members who first became members before 8 September 1980.  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.
DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the orders transferring him into the Retired Reserve should reflect the highest grade he held vice the grade that he held at the time. 

2.  The evidence of records shows the applicant held the rank/grade of SSG/E-6 from 17 February 1993 until he was honorably discharged on 26 January 1996.  After a break in service he enlisted in the USAR on or around 12 September 1997 and accepted an administrative reduction to SGT for the purpose of reclassifying to a new MOS and accepting another position.  His reduction was not due to his own misconduct.  

3.  Nevertheless, at the time he was transferred into the Retired Reserve he held the rank of SGT.  He has not yet reached the age of 60 or been placed on the retired list; the orders transferring him into the Retired Reserve correctly show his rank as SGT.  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.

4.  However, by law, in connection with a nonregular retirement, enlisted members are entitled to receive retired pay in the highest grade held satisfactorily at any time in the Armed Forces.  The evidence of record in this case confirms the applicant’s service in the highest grade he held (pay grade 
E-6) was satisfactory.  Therefore, upon his 60th birthday and his application for retired pay, he will be eligible to receive non-regular retired pay based on the rank/grade of SSG/E-6.  

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)                                         AR20130003630



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ABCMR Record of Proceedings (cont)                                         AR20130003630



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