IN THE CASE OF:	  

		BOARD DATE:	  10 June 2014

		DOCKET NUMBER:  AR20130017795 


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, advancement on the retired list to the highest rank he satisfactorily held in the rank/grade of sergeant first class (SFC)/E-7.

2.  He states:

* he was reduced in rank to (SGT)/E-5 in October 1986
* he was promoted to pay SFC/E-7in May 1986 according to his Official Militsry ZPersonnel File OMPF), but he never received any orders
* he should be getting paid for SFC/E-7, not staff sergeant (SSG)/E-6

3.  He provides pages 1 and 2 of his DA Form 2-1 (Personnel Qualification Record - Part II).

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 initially enlisted in the Regular Army on 29 January 1969 and he continued to serve on active duty through a series of reenlistments.

3.  His DA Form 2-1 shows he was promoted to SGT/E-5 on 1 October 1971 and to SSG/E-6 on 15 June 1978.

4.  Orders 43-62 published on 28 April 1986 indicate he was to be promoted to SFC/E-7 with an effective date of 1 June 1986 and date of rank of 1 May 1986.  These orders stated, in part, "Promotion is not valid and will be revoked if the soldier concerned is not in a promotable status on the effective date of promotion."

5.  On 15 May 1986, he was barred from reenlistment for receipt of numerous letters of indebtedness and adverse counseling statements.

6.  On 3 October 1986, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) for, with intent to defraud and for the procurement of lawful currency, wrongfully and unlawfully draw a certain check upon the Fort Jackson Federal Credit Union.  The continuation page of the DA Form 2627 (Record of Proceedings under Article 15, UCMJ) is not available for review.  His punishment consisted of reduction from SSG/E-6 to GT/E-5 and forfeiture of $306.00 pay for two months (forfeiture suspended for 60 days).

7.  His DA Form 2-1 indicates in block 5 (Assignment Consideration):

* he was not recommended for further service on 13 June 1986
* he had been removed from the SFC/E-7 Selection list
* his bar to reenlistment was reviewed and it was not recommended for removal on 3 June 1988
* his reenlistment was denied by Headquarters, Department of the Army (DA) letter, dated 14 October 1988



8.  On 14 October 1988, he received a DA-Imposed Bar to Reenlistment under the Qualitative Management Program (QMP).  On 1 November 1988, he completed a DA Form 4941-R (Statement of Option) and he elected to request immediate retirement.

9.  On 31 January 1989, he was released from active duty and on the following date, he was placed on the retired list in the rank/grade of SGT/E-5.

10.  On 11 February 2004, the Army Grade Determination Review Board convened under the provisions of Army Regulation 15-80 (Army Grade Determination Review Board and Grade Determinations) and determined the highest grade in which the applicant served satisfactorily for the purpose of computation of retired pay was SSG/E-6.  As a result, he was granted advancement on the retired list to the rank/grade of SSG/E-6, the highest active duty grade he satisfactorily held, effective 28 January 1999.

11.  In a letter, dated 12 February 2004, the Army Review Boards Agency informed the applicant the Army Grade Determination Review Board had advanced him on the retired list to the rank/grade of SSG/E-6.

12.  Title 10, U.S. Code, section 3964 - Higher grade after 30 years of service: 

   (a)  Each retired member of the Army covered by subsection (b) who is retired with less than 30 years of active service is entitled, when his active service plus his service on the retired list totals 30 years, to be advanced on the retired list to the highest grade in which he served on active duty satisfactorily (or, in the case of a member of the National Guard, in which he served on full-time duty satisfactorily), as determined by the Secretary of the Army. 

   (b)  This section applies to—

   (1)  warrant officers of the Army;
   
   (2)  enlisted members of the Regular Army; and
   
   (3)  reserve enlisted members of the Army who, at the time of retirement, 
are serving on active duty (or, in the case of members of the National Guard, on full-time National Guard duty).

13.  Army Regulation 15-80 establishes policies, procedures, and responsibilities of the Army Grade Determination Review Board and other organizations delegated to make grade determinations on behalf of the Secretary of the Army.  Paragraph 2-5 states that service in the highest grade or an intermediate grade normally will be considered to have been unsatisfactory when there is sufficient unfavorable information to establish that the Soldier’s service in the grade in question was unsatisfactory.  One specific act of misconduct may or may not 
form the basis for a determination that the overall service in that grade was unsatisfactory, regardless of the period of time served in grade.  However, service retirement in lieu of or as the result of elimination action will not, by itself, preclude retirement in the highest grade.

DISCUSSION AND CONCLUSIONS:

1.  The applicant served on active duty from 29 January 1969 to 31 January 1989.  During this period, he was barred from reenlistment for receipt of numerous letters of indebtedness.

2.  He was promoted to SSG on 15 June 1978. 

3.  Orders were published which show he was to be promoted to SFC with an effective date of 1 June 1986.  However, he was barred from reenlistment due to numerous letters of indebtedness.  Therefore, he was not in a promotable status at that time and he was removed from the E-7 Selection Board.

4.  He was reduced to SGT on 3 October 1986 as a result of nonjudicial punishment under Article 15, UCMJ.

5.  Orders were published that show he retired from active duty on 31 January 1989 and was placed on the retired list in the rank of SGT/E-5 on 1 February 1989.

6.  On 11 February 2004, the Army Grade determination Review Board determined the highest active duty grade in which he served satisfactorily for the purpose of computation of retired pay was SSG/E-6.

7.  By law, retired Army personnel may be advanced in grade to the highest grade satisfactorily held while on active duty as determined by the Secretary of the Army upon completion of 30 years of service.

8.  Since he did not serve in the rank/pay grade of SFC/E-7 during his tenure on active duty, advancement on the retired list to the rank/pay grade of SFC/E-7 is not warranted.



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)                                         AR20130017795





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ABCMR Record of Proceedings (cont)                                         AR20130017795



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