IN THE CASE OF:	  

		BOARD DATE:	  31 December 2013

		DOCKET NUMBER:  AR20130006374 


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 the orders placing him on the Retired List to show his rank/grade as sergeant first class (SFC)/E-7 instead of staff sergeant (SSG)/E-6 and any due back retired pay in the grade of SFC/E-7. 

2.  The applicant states the highest rank he held was SFC.  He took a voluntary reduction without prejudice to SSG, effective 3 April 1992.

3.  The applicant provides:

* DA Form 2166-7 (Noncommissioned Officer (NCO) Evaluation Report) for the rated period ending on September 1990
* Notification of Eligibility for Retired Pay at Age 60 (20-year letter), dated 17 January 1992
* DD Form 1883 (Survivor Benefit Plan Election Certificate), dated 
19 February 1992
* Orders Number 13-2, dated 3 April 1992
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* Army National Guard Retirement Points History Statement, dated 8 July 1993





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 XX April 1952, enlisted in the Missouri Army National Guard (MOARNG) on 30 November 1971, and served through a series of reenlistments or extensions.  

3.  He was promoted to SSG on 9 August 1977 and to SFC on 4 December 1989.

4.  His record contains an undated letter to his commanding officer, wherein he stated, with respect to his current position as detachment sergeant:

* in recent months his civilian job was becoming more demanding of his time both on and off the job
* the situation with his civilian job has reached a point where he felt he could no longer put forth the extra effort needed to adequately perform his duties as detachment sergeant
* he felt it was in the best interest of the detachment that he step down from the position
* he requested a reduction in rank from SFC to SSG and placement into a SSG slot that was currently open in his unit

5.  His record does not contain any evidence showing he served unsatisfactorily in the rank of SFC.

6.  Orders Number 13-2, issued by Detachment 1, Headquarters, State Area Regional Command (Troop Command), MOARNG, Kansas City, MO, on 3 April 1992 reduced him from SFC to SSG, by reason of a voluntary reduction without prejudice, effective 3 April 1992.

7.  His NGB 22 shows he was honorably discharged from the MOARNG on 
22 May 1993 in the rank of SSG with the date of rank of 9 August 1977.

8.  Orders Number C-11-447755, issued by U.S. Army Reserve Personnel Center (currently the U.S. Army Human Resources Command (HRC)), St Louis, MO, on 18 November 1994 assigned him to the retired Reserve in the rank of SSG, effective 18 November 1994,

9.  Orders Number C01-39061, issued by HRC, Fort Knox, KY, on 31 January 2013, placed him on the retired list in the rank of SSG effective 19 April 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. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the orders placing him on the Retired List should reflect the highest grade he held vice the grade that he held at the time. 

2.  The evidence of record shows the applicant held the rank SFC and voluntarily requested a reduction to SSG.  The reduction was not due to his misconduct and there is no evidence to show he was serving unsatisfactorily in the rank of SFC.  His reduction orders state the reduction was without prejudice.  

3.  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 confirms his service in the highest grade he held (pay grade E-7) was satisfactory.  Therefore, he is entitled to correction of his orders to show he was placed on the retired list in the rank/grade of SFC/E-7.

BOARD VOTE:

____X____  ___X_____  ____X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was 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:

* amending Orders Number C01-390861 to show his retired rank/grade as SFC/E-7
* paying him any back retired pay to which he is entitled as a result of this 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)                                         AR20130006374





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ABCMR Record of Proceedings (cont)                                         AR20130006374



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