BOARD DATE:	  25 June 2014

		DOCKET NUMBER:  AR20130015929 


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 retired from the U.S. Army Reserve (USAR) in the rank/grade of sergeant first class (SFC)/E-7 instead of staff sergeant (SSG)/E-6 and to restore his retired pay in the pay grade of E-7, the highest grade he satisfactorily served in the USAR.
 
2.  The applicant states he is erroneously receiving retirement pay based on a lower rank of service.

3.  The applicant provides a self-authored statement; Orders 27-29 issued by Headquarters, 90th USAR Command, dated 3 April 1986; Honorable Discharge Certificate; Army Commendation Medal Certificate, dated 25 September 1986; and Orders 75-43 issued by the U.S. Army Engineer Center, Fort Leonard Wood, MO, dated 12 March 1991.

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 5 October 1951.  He enlisted in the Regular Army on 31 August 1973.  He successfully completed training and performed duties as a light weapons infantryman.  On 31 August 1977, he was honorably released from active duty and transferred to the USAR Control Group (Reinforcement).

3.  On 28 January 1979, he enlisted in the Texas Army National Guard.  On       31 January 1984, he was honorably discharged for immediate enlistment in the USAR.

4.  On 1 February 1984, the applicant enlisted in the USAR for a period of three years in pay grade E-6.

5.  The applicant provides Orders 27-29 that promoted him to the rank/grade of  SFC/E-7, effective 24 March 1986.

6.  On 22 January 1987, the applicant reenlisted in the USAR for a period of 6 years in pay grade E-7.

7.  His record contains:

   a.  a DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 21 March 1991, that shows his rank/grade as SFC/E-7.

   b.  Orders D-11-496871, issued by the USAR Personnel Center, dated
10 November 1994, which honorably discharged the applicant from the USAR effective 10 November 1994, in the rank/grade of SFC/E-7.

8.  On 14 November 2003, the applicant enlisted in the USAR for a period of 4years in pay grade E-6.

9.  On 5 October 2006, the U.S. Army Human Resources Command (HRC) 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.

10.  On 14 June 2011, HRC published Orders P06-947007 placing him on the retired list in the retired rank of SSG effective 5 October 2011, his 60th birthday, in accordance with Title 10, U.S. Code, section 12731.

11.  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.

12.  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.

13.  Army Regulation 135-180 (Army National Guard 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.

14.  Army Regulation 135-180, paragraph 1-4, states retired pay is pay granted to Soldiers and former Reserve Component 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 a Reserve Component.

DISCUSSION AND CONCLUSIONS:

1.  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.

2.  In the applicant's case, the evidence of record shows he was promoted to SFC/E-7 and successfully held that grade for many years until he was honorably discharged from the USAR on 10 November 1994.  While the applicant subsequently enlisted in the USAR on 14 November 2003 in the rank/grade SSG/E-6, there is no information in the applicant's service record to indicate that he failed to serve satisfactorily as a SFC/E-7.  There is no available evidence in the applicant's records that shows he was ever reduced for misconduct or any other negative/derogatory reason.

3.  Therefore, his record should be corrected to show he retired in the rank/grade of SFC/E-7 on his 60th birthday and with all 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 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: 

   a.  amending Orders P06-947007 issued by HRC on 14 June 2011 to show he was retired and placed on the retired list in the retired rank/grade of SFC/E-7 effective 5 October 2011; and
   
   b.  auditing his pay records and paying him all retired pay due 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)                                         AR20130015929





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ABCMR Record of Proceedings (cont)                                         AR20130015929



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