BOARD DATE:	  13 March 2014

		DOCKET NUMBER:  AR20130011626 


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 placed on the retired list in the rank/grade of sergeant first class (SFC)/E-7, the highest grade he satisfactorily held, instead of staff sergeant (SSG)/E-6
* recalculation of his years of service

2.  The applicant states his retirement orders show his grade as SSG/E-6.  He held the grade of SFC/E-7 for many years in the Ohio Army National Guard (OHARNG) and he was reduced as an administrative action, not a disciplinary action.  Additionally, his years of service should show 21 years, not 41 years.  His date of birth (DOB) is also incorrect.  It should be 27 December 1952.  

3.  The applicant provides:

* Orders 57-2, dated 30 August 1982
* Orders 54-1, dated 28 June 1989

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 27 December 1952.  

2.  He enlisted in the OHARNG for 6 years on 13 March 1971.  His DD Form 4 (Enlistment Contract - Armed Forces of the United States) shows his DOB as 27 December 1952.  He also completed a DD Form 398 (Statement of Personal History) and listed his DOB as 27 December 1952. 

3.  His service record does not contain his reenlistment/extension documents.  However, it contains a DA Form 4836 (Oath of Extension of Enlistment or Reenlistment), dated 11 January 1987, that shows:

* he previously executed 2 extensions
* his current enlistment is dated 9 March 1984
* the period of this extension is 6 years 

4.  On 30 August 1982, the OHARNG published Orders 57-2 promoting him to SFC/E-7 effective 1 September 1982.  

5.  His Enlisted Evaluation Reports/Noncommissioned Officer Evaluation Reports between August 1982 and June 1989 show he served satisfactorily in the rank/grade of SFC/E-7.  

6.  On 28 June 1989, the OHARNG published Orders 54-1 reducing him in rank from SFC/E-7 to SSG/E-6 in accordance with paragraph 6-44k of National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management), with a date of rank as 1 June 1977. 

7.  He entered active duty on 3 January 1991 and he was released from active duty on 8 February 1991.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows his DOB as 27 December 1952. 

8.  On 7 May 1991, the OHARNG issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (20-year letter).  This letter notified him that he had completed the required years of service and would be eligible for retired pay upon application at age 60.

9.  On 3 December 1991, the OHARNG published Orders 232-10 discharging him from the ARNG and transferring him to the Retired Reserve effective 1 December 1991.  The orders listed his rank as SSG.

10.  His National Guard Bureau (NGB) Form 23B (ARNG Retirement Points History Statement) shows he completed 20 years of qualifying service for non-regular retirement. 



11.  He was discharged from the ARNG on 1 December 1991.  His NGB Form 22 (Report of Separation and Record of Service) shows his DOB as 27 December 1952.  This form also shows he completed 20 years, 8 months, and 19 days of service for pay.  Additionally, this form shows in:

* item 5a (Rank), the entry SSG
* item 5b (Pay Grade), the entry E-6
* item 6 (DOR), the entry "77-06-01"

12.  On 6 September 2012, the U.S. Army Human Resources Command published Orders P09-947733 placing him on the Retired List in the rank of SSG effective 27 December 2012, his 60th birthday, in accordance with Title 10, U.S. Code, section 12731.

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 service as computed under section 12732.

14.  Department of Defense Financial Management Regulation (DODFMR), 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.

15.  Army Regulation 135-180 (ARNG and Army Reserve 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 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.

16.  Army Regulation 135-180, paragraph 1-4, states that retired pay is pay granted to Soldiers and former Reserve Component (RC) Soldiers under Title 10, U.S. Code, section 1331, after completion of 20 or more years of qualifying service and upon attaining age 60.  This pay is based on the highest grade satisfactorily held at any time during an individual's entire period of service, other than in an inactive section of an RC.

DISCUSSION AND CONCLUSIONS:

1.  With respect to the DOB, upon his enlistment in the ARNG in 1971 the applicant listed his DOB as 27 December 1952.  This DOB is consistent with the DOB shown on several military documents throughout his military service.  He neither used a different DOB nor is a different DOB shown anywhere on his military records.  There is nothing to correct. 

2.  With respect to the retired grade: 

	a.  By law, a person 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 Soldier's service record to indicate clearly that the highest grade was not served satisfactorily.

	b.  In the applicant's case, the evidence of record shows he was promoted to SFC/E-7 on 30 August 1982 and held that grade until 11 July 1989 when he was voluntarily reduced to SSG/E-6 in what appears to be to accept a different position.  There is no evidence of record that shows he was reduced for misconduct or any other negative/derogatory reason.

	c.  The applicant's record should be corrected to show he retired in the rank/grade of SFC/E-7 on his 60th birthday and he should be paid all due retired pay as a result of this correction.

3.  With respect to his years of service:

	a.  ARNG Soldiers have their retirement points recorded in a separate retirement point accounting system.  NGB Form 23 (Retirement Credits Record) and the NGB Form 23B are used as a record of the ARNG duty performed by a Soldier.  The applicant's NGB Form 23B, dated 7 May 1991 shows he completed 20 qualifying years of service toward non-regular retirement and his NGB Form 22 shows he completed 20 years, 8 months, and 19 days of total service for pay.

	b.  If the applicant believes his retirement points history statement is incorrect and does not reflect all his retirement points, he should address this form with the State Army National Guard or the National Guard Bureau.  
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__X___  ____X____  ___X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

* amending Orders P09-947733, issued by the U.S. Army Human Resources Command, dated 6 September 2012, to show he was placed on the Retired List effective 27 December 2012 in the rank/grade of sergeant first class (E-7)
* auditing his pay records and paying him all retired pay due as an E-7 as a result of this correction

2.  The Board further determined that the evidence presented was insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to recalculation of his retirement points. 




      _______ _   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)                                         AR20130011626





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ABCMR Record of Proceedings (cont)                                         AR20130011626



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