BOARD DATE:	17 July 2014

		DOCKET NUMBER:  AR20130017978


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, adjustment of his retired pay so that its calculation is based on the highest 36 months of pay he earned (to include his pay earned in the rank/grade of sergeant major (SGM)/E-9), versus the highest 36 months of pay he earned in the rank/grade of master sergeant (MSG)/E-8.  

2.  The applicant states:

* both the Military Retirement Pay Coordinator at Fort Knox, KY and the Ohio Army National Guard (OHARNG) Active Guard Reserve (AGR) Finance Noncommissioned Officer (NCO) calculated his retirement pay at $3907.00 monthly; however, he is only receiving $3315.00
* his retired pay calculation should be based on pay averaging $6148.23 monthly, not the current based average of $5184.90
* he held the rank/grade of SGM/E-9 for 35 months, from 1 February 2010 to 17 January 2013, which should make the average pay, from which his retired pay is calculated, higher than it is currently calculated
* he is not sure where the $5184.90 figure came from, but it is incorrect 

3.  The applicant provides:

* a 3-page letter to the Army Board for Correction of Military Records (ABCMR), dated 24 September 2013
* a letter from the Retired and Annuity Pay Branch, Defense Finance and Accounting Service (DFAS), London, KY, dated 4 September 2013
* a 2-page letter to DFAS, dated 2 September 2013
* a letter from the Retired and Annuity Pay Branch, DFAS, dated 3 June 2013

CONSIDERATION OF EVIDENCE:

1.  On or about 15 August 1984, the applicant enlisted in the Regular Army.  

2.  On 23 November 1991, he was honorably released from active duty.  His record shows he held military occupational specialties (MOS) in the logistics and maintenance career management fields.

3.  On 25 August 1992, he enlisted in the OHARNG, and on 1 September 1995, he entered active duty in a Title 32 (National Guard) AGR status.

4.  He served through numerous periods of reenlistment or extension, in positions of increased responsibility, and on 14 August 2006, he was promoted to the rank/grade of MSG/E-8.

5.  On 1 February 2010, he was promoted to the rank/grade of SGM/E-9.  As a condition of his promotion, he was required to complete the Sergeants Major Course (SMC), by either resident or non-resident instruction, under the auspices of the U.S. Army Sergeants Major Academy (USASMA), Fort Bliss, TX.

6.  Apparently, he did not complete the SMC.  His record is void of documentation that clarifies the reason for his inability to complete his conditional promotion requirements.

7.  On 26 June 2012, his record was reviewed by the Calendar Year 2012 (CY12) OHARNG Enlisted AGR Active Service Management Board (ASMB).  After a thorough review of his record, he was selected for release from the AGR Program.  

8.  Order 029-970, issued by the OHARNG on 29 January 2013, reduced him in rank and grade from SGM/E-9 to MSG/E-8, effective 17 January 2013.  The cited authority for this reduction is Army Regulation 600-8-19 (Enlisted Promotions and Reductions), paragraph 10-16c (Reductions for failure to complete training).

9.  Order 087-905, issued by the OHARNG on 28 March 2013, discharged him from the ARNG, effective 30 April 2013, and assigned him to the U.S. Army Reserve Control Group (Retired Reserve), effective 1 May 2013.

10.  On 30 April 2013, he was honorably retired from the OHARNG in the rank/grade of MSG/E-8.  His DD Form 214 (Certificate or Release or Discharge from Active Duty) credits him with completing 25 years, 1 month, and 13 days of active service, and 3 years, 6 months, and 19 days of inactive service.  

11.  On 1 May 2013, he was placed on the Retired List in the rank/grade of MSG/E-8.

12.  He provides copies of his correspondence with the Retired and Annuity Pay Branch, DFAS, London, KY, which document his efforts to gain a resolution to his perceived error in the calculation of his retired pay.  In their response to the applicant, DFAS cites the specific figures used to calculate his retired pay entitlement.  These calculations show his retired pay multiplier (years of active service multiplied by 2.5 percent) was applied to a figure of $5184.90, which represents the monthly base pay entitlement for a MSG with over 24 years of service for pay purposes. 

13.  In the processing of this case, an advisory opinion was provided by the Chief, Personnel Policy Division, National Guard Bureau (NGB), Arlington, VA.  The advisory official recommended disapproval of the applicant's request, stating:

   a. The OHARNG published Order Number 029-970, dated 29 January 2013, reducing the applicant from SGM/E-9 to MSG/E-8, based on his inability to complete the SMC at USASMA.

   b. His initial retired pay calculations were computed by the OHARNG AGR Finance NCO and the Fort Knox, KY Transition Center; however, DFAS is the proponent for retired pay, and any computations completed by agencies other than DFAS are merely estimates for planning purposes.

   c. Title 10, U.S. Code (USC), section (§) 1407 (10 USC § 1407) (Retired base pay for members who first became members after 7 September 1980: high-36 month average) provides that in the case of a member or former member reduced in grade and officers who do not serve satisfactorily in the highest grade held, the computation of retired pay is based on pre-high-3 rules.  That is to say, the retired pay is determined under Title 10, USC, § 1406 (10 USC § 1406) (Retired pay base for members who first became members before 8 September 1980: final basic pay) in the same manner as if the member or former member first became a member of the uniformed service before 8 September 1980.

   d. MSG [Applicant's] gross monthly retired pay, according to 10 USC § 1406, is calculated using the final basic pay rate of MSG/E-8; he is not entitled to use the high-3 as the basis for his retired pay calculation.

   e. The ARNG Judge Advocate (Administrative Law) and Retirement Services Branch of the ARNG Human Capital Management Division reviewed and provided input to this advisory opinion.

   f. The State of Ohio does not concur with NGB's advisory recommendation.  According to the OHARNG Staff Judge Advocate (SJA), Public Law 106-398 , Title VI, section 651 (Exception to High 36 month retirement pay computation for members retired following a disciplinary reduction in grade) is what created       10 USC § 1407.  The use of the word "disciplinary" is germane to establishing congressional intent of this statute.  The statute does not apply to the applicant because he was not reduced by reason of conduct; his reduction was administrative, based on his inability to meet the prescribed conditions of his promotion.  Accordingly, his reduction was not "disciplinary."  

   g. The State of Ohio does agree his retirement rank/grade should be that of a MSG/E-8, since he failed to complete the SMC; however, the State feels he should be given full credit in calculating his retired pay for the 35 months and     16 days he successfully served in the rank/grade of SGM/E-9.  To do otherwise would place MSG [Applicant] in the same category as those who were retired following a disciplinary reduction in grade, which is clearly not the intent of Congress.

14.  On 4 March 2014, the applicant was provided a copy of the advisory opinion for review and possible comment and/or rebuttal.

15.  On 27 March 2014, the applicant responded to the advisory opinion, stating:

   a. He is appealing the NGB's Advisory Opinion on the grounds that he never showed any form of misconduct or unsatisfactory performance of his duties throughout his entire career.

   b. The NGB Advisory Opinion references 10 USC § 1407, which refers to enlisted members reduced in grade and officers who fail to serve satisfactory in the highest grade held.  He does not feel that one failure of the Army's height and weight standards should place him, or any other Soldier or Officer, in the category of failing to serve satisfactorily in the highest grade held.  He had maintained the same height and weight for over five years and while assigned to three separate OHARNG organizations without failure to meet the standards. This was the first time in his career that he failed to meet the Army height and weight standards of Army Regulation 600-9 (The Army Weight Control Program, now called The Army Body Composition Program).  

   c. In July 2012, the OHARNG conducted an AGR Strength Maintenance Board, and for reasons undisclosed to him, his packet did not meet the criteria to be retained.  He was forced to retire no later than 30 April 2013.  In January 2013, when he failed to meet the Army's height and weight standards for USASMA completion, he was not flagged, re-weighed upon return, or placed in the Army weight control program.  He was reduced without any formal counseling from anyone in his chain of command, he was not given any opportunity to discuss any options, and he was not given any opportunity to return to USASMA, as the policy states, due to the fact that he had less than six months remaining as a member of the AGR work force.  

   d. Instead, after 28 years of dedicated service, he was informed in a hallway by the State Command Sergeant Major that a reduction order had been published and he was "out of uniform."  If this wasn't disrespectful enough for his 28 and a half years of dedicated service, he found out that the underlying reason for his reduction was being classified as misconduct or unsatisfactory service, and his high-36 base pay at the E9 base pay rate would not be considered in calculating his retired pay.  He feels this is very unjust and unfair.

   e. He would like to point out that Public Law 106-398, section 651, states that one exception to deny a member high-36 month retired pay computations refer to members retired following a disciplinary reduction in grade.  His reduction to E-8 was not due to disciplinary actions, but due to his failure to meet the physical requirements for completion of the SMC at USASMA.  He met all academic requirements per his DA Form 1059 (Service School Academic Evaluation Report), and block 13 of that form states he should be considered for positions of higher education and military training.

   f. Department of Defense 7000.14-R (Department of Defense Financial Management Regulation), Volume 7B (Military Pay Policy – Retired Pay) (DODFMR), paragraph 030112 refers to members who were reduced in grade as a result of court-martial sentence or nonjudicial punishment.  His reduction was not a result of any misconduct or improper behavior in any way, but a one-time failure of an Army standard.

   g. If he had attended USASMA prior to the 1 November 2012 physical fitness and height and weight policy change, he would have had a completely different outcome. The policy in effect then (for failure to meet the height and weight standards for completion requirement of the USASMA) would have resulted in his receipt of a "marginal" evaluation rating on his DA Form 1059; however, he would have been allowed to complete the USASMA, be considered a graduate, and he would not have been reduced in grade.

   h. He does not understand why this one-time shortfall should affect his retired pay for the rest of his life, when three months earlier this situation probably wouldn't have been an issue.  He has always tried to give his all and dedicate his efforts to setting the right example throughout his entire career and strive to improve every unit/organization to which he was assigned. 

   i. He could fully understand the advisory opinion provided by NGB if he had not satisfactorily served or if his actions were considered acts of misconduct, but this is clearly not the case in his situation.  He has always tried to lead by example and be a positive role model for all subordinate Soldiers to emulate.

16.  Army Regulation 600-8-19 prescribes policies and procedures governing the promotion and reduction of Army enlisted personnel, including Soldiers of the ARNG.  Chapter 10 provides specific guidance on reductions in grade.  Paragraph 10-16c provides that Soldiers conditionally promoted are administratively reduced to the grade previously held upon failure to complete the training requirement established by the condition promotion.

17.  10 USC § 1407 provides the legal framework for calculating retired pay using the high-three average method.  

   a. Subsection (b) provides that except as provided in subsection (f) (emphasis added), the retired pay base or retainer pay base of a person under this section is the person’s high-three average determined under subsection (c) or (d). 

   b. Subsection (f) (Exception for Enlisted Members Reduced in Grade and Officers Who Do Not Serve Satisfactorily in Highest Grade Held.) provides:

		(1) Computation based on pre-high-three rules.— In the case of a member or former member described in paragraph (2), the retired pay base or retainer pay base is determined under section 1406 of this title in the same manner as if the member or former member first became a member of a uniformed service before 8 September 1980 (emphasis added).

		(2) Affected members.  A member or former member referred to in paragraph (1) is a member or former member who by reason of conduct occurring after 30 October 2000— 

			(A) in the case of a member retired in an enlisted grade (emphasis added) or transferred to the Fleet Reserve or Fleet Marine Corps Reserve, was at any time reduced in grade as the result of a court-martial sentence, nonjudicial punishment, or an administrative action (emphasis added), unless the member was subsequently promoted to a higher enlisted grade or appointed to a commissioned or warrant grade; and 

			(B) in the case of an officer, is retired in a grade lower than the highest grade in which served by reason of denial of a determination or certification under section 1370 of this title that the officer served on active duty satisfactorily in that grade. 

		(3) Special rule for enlisted members.— In the case of a member who retires within three years after having been reduced in grade as described in paragraph (2)(A), who retires in an enlisted grade that is lower than the grade from which reduced, and who would be subject to paragraph (1) but for a subsequent promotion to a higher enlisted grade or a subsequent appointment to a warrant or commissioned grade, the rates of basic pay used in the computation of the member’s high-36 average for the period of the member’s service in a grade higher than the grade in which retired shall be the rates of pay that would apply if the member had been serving for that period in the grade in which retired. 

18.  Volume 7B of the DODFMR provides specific guidance on the eligibility for, and computation and payment of, the Department of Defense military retired pay entitlement.  Chapter 3 provides guidance on computing the gross pay entitlement.  Sub-paragraph 030112 (Exception to High-36 Month Retired Pay Computation for Members Retired Following a Disciplinary Reduction in Grade) provides that members (or former members) who entered the Uniformed Services on or after 8 September 1980, will have their retired pay base computed using the high-36 month average, except for the members described as follows, whose retired pay base is based on the final basic pay of the grade prescribed in Title 10, USC, section 1406, rather than the highest 36 month average of basic pay (emphasis added).

	a.  Affected Members.  A subset of the group of members affected by this provision includes enlisted members who, by reason of conduct occurring after 30 October 2000, retired (emphasis added) or transferred to the Fleet Reserve/Fleet Marine Corps Reserve, and who were reduced in grade as a result of court-martial sentence, nonjudicial punishment, or an administrative action (emphasis added), unless the member was subsequently promoted to a higher enlisted grade or appointed to a commissioned or warrant grade.

	b.  Special Rule for Enlisted Members.  In the case of an enlisted member retired within 3 years after having been reduced in grade, and who was not subsequently promoted to a higher enlisted grade (or appointed to a warrant or commissioned grade), the retired pay base will be computed using the final basic pay rather than the high 36-month average (emphasis added).  If, however, the member is subsequently promoted to a higher enlisted grade (or appointed to a warrant or commissioned grade), then the member’s retired pay will be computed using a high 36-month average computation. The computation will use the final 36-months of basic pay, except for the months in which the member served in a grade higher than the grade in which retired. The basic pay for such months shall be the rates that would have applied to the member at that time if serving in the grade in which retired.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for adjustment of his retired pay so that its calculation is based on the highest 36 months of pay he earned (to include his pay earned in the rank/grade of SGM/E-9, versus the highest 36 months of pay he earned in the rank/grade of MSG/E-8, was carefully considered.

2.  He contends his retired pay calculation should be based on his E-9 pay, not the current based average of $5184.90, which is based on his E-8 pay.  He further contends he should be given credit for the 35 months he served satisfactorily as a SGM/E-9, and the average pay from that service should be used to calculate the average pay toward his retired pay.

3.  He contends that 10 USC § 1407, Public Law 106-398, section 651, and paragraph 030112 the DODFMR pertain to Soldiers reduced for misconduct.  Since he was not reduced for misconduct, they should not be considered relevant to his case.  

4.  The evidence of record shows that on 1 February 2010, he was promoted to the rank/grade of SGM/E-9.  As a condition of his promotion, he was required to complete the SMC, by either resident or non-resident instruction, under the auspices of USASMA.  

5.  He had at least 2 years between the time he was promoted and the time he attended the resident phase of the SMC; thus, he had ample opportunity to ensure he met the height and weight standards at USASMA.  

6.  Presumably, he did not complete SMC at USASMA because he did not meet the Army's height and weight requirements, a prerequisite to course attendance.  His lack of compliance and subsequent disenrollment constituted a course failure.  Therefore, he did not meet the conditions of his conditional promotion to SGM/E-9.

7.  He was non-selected for continued AGR service by the CY12 OHARNG Enlisted AGR ASMB, and on 30 April 2013, he was honorably retired from the OHARNG.  Since he did not meet the conditions of his promotion, he was reduced in rank from SGM/E-9 to MSG/E-8, prior to his retirement from the OHARNG. 

8.  10 USC § 1407, Public Law 106-398, section 651, and paragraph 030112 the DODFMR provide for special considerations for enlisted Soldiers who did not serve satisfactorily in a higher grade, who were reduced in grade as the result of a court-martial sentence, non-judicial punishment, or an administrative action (emphasis added).  Included in the sub-set of "administrative actions" are those reductions resulting from failure to meet Army height and weight standards and failure to comply with the requirements of a conditional promotion.  As such, each of these provisions of law and regulation are applicable in this case.  

9.  The applicant has failed to show that his retired pay has been incorrectly computed; therefore, he has failed to show an error or injustice in this case.  In view of the foregoing, he is not entitled to the requested relief.  

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)                                         AR20130017978



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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