IN THE CASE OF:
BOARD DATE: 17 December 2013
DOCKET NUMBER: AR20130007449
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 Army Military Human Resource Record (AMHRR) to show that the amount of his retired pay is based on his last three years of service.
2. The applicant states that his retired pay should have been calculated using his highest rank held during a 3-year period (high 3). In August 2005 he was promoted to sergeant first class, pay grade E-7 (SFC/E-7). He held this rank and pay grade until October 2010, when he was reduced to staff sergeant, pay grade E-6 (SSG/E-6). He retired on 1 June 2011. His retirement is based on his pay as a SSG/E-6 of $3,533.40. He contends that it should have been based on his SFC/E-7 pay of $4,131.30.
3. The applicant provides no additional documentation.
CONSIDERATION OF EVIDENCE:
1. On 18 August 1988, the applicant enlisted in the Regular Army. He progressed through the ranks and was promoted to SFC/E-7 on 1 June 2005.
2. Orders Number 11-1, U.S. Army Human Resources Command, dated
11 January 2010, announced the promotion of the applicant to master sergeant, pay grade E-8, with an effective date of 1 January 2010. Furthermore, these orders would be revoked if he was not in a promotable status on the effective date.
3. General Court-Martial Orders Number 2, 2nd Infantry Division, dated
8 February 2011, announced that the applicant had been found guilty of numerous violations of the Uniform Code of Military Justice. He was sentenced to a reduction to SSG/E-6. His new date of rank was 22 October 2010.
4. Orders 047-0003, Installation Management Command, Korea Region, dated 16 February 2011, announced that the applicant was released from active duty effective 31 May 2011. On the day following he was placed on the retired list in the rank and grade of SSG/E-6. He had completed 22 years, 9 months, and
13 days of creditable active duty service.
5. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was retired as a SSG/E-6 due to length of service.
6. Title 10, U.S. Code, section 1407(f)(3) provides that when a service member retires within 3 years after having been reduced in grade as a result of court-martial and retires in that lower grade, the rates of basic pay used in the computation of the service member's high 3 average shall be the rates of pay that would apply if the service member had been serving for that period in the grade in which retired.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that his AMHRR should be corrected to show the amount of his retired pay is based on his last three years of service. He implies that the high 3 years when he was an SFC/E-7 should have been used for calculating the amount of his retired pay.
2. The available evidence of record clearly shows that the applicant had attained the rank of SFC/E-7 in 2005 and had served in that grade until his reduction to SSG/E-6 as a result of court-martial in 2010.
3. In 2011, as an SSG/E-6, the applicant retired due to length of service.
4. Statute requires that Soldiers who retire within 3 years of their reduction in grade due to misconduct will have their retired pay calculated based on the grade at which they retired as if they had served in that lower grade for the entire 3-year period.
5. There is no apparent error or injustice.
6. In view of the above, the applicant's request should be denied.
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) AR20130007449
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ABCMR Record of Proceedings (cont) AR20130007449
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