IN THE CASE OF: 

		BOARD DATE:	    5 August 2014

		DOCKET NUMBER:  AR20130020817 


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 master sergeant (MSG)/E-8, the highest grade he satisfactorily held, instead of sergeant first class (SFC)/E-7.

2.  The applicant states he was promoted to MSG/E-8 on 10 February 2000.  He maintained his position for 18 months and even moved to an E-9 position.  He requested an administrative reduction to SFC/E-7 on 30 August 2002 for the purpose of mobilization/active duty; prior E-8 position already filled.  He only needed 18 months of time in grade to meet the requirements for E-8 retired pay.

3.  The applicant provides:

* DA Form 4856 (Developmental Counseling Form)
* DA Form 2-1 (Personnel Qualification Record – Part II)
* promotion and reduction orders
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 4 October 1953.

2.  He enlisted in the New York Army National Guard (NYARNG) on 8 August 1980.  He served through multiple extensions in a variety of assignments.

3.  On 7 March 2000, the NYARNG published Orders 067-004 promoting him to MSG/E-8 effective 10 February 2000.

4.  His noncommissioned officer evaluation reports (NCOER) for the rating periods October 1999-September 2000 and October 2000-September 2001 show he served satisfactorily in the rank/grade of first sergeant (1SG)/E-8.

5.  On 5 September 2000, the NYARNG 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.

6.  On 30 August 2002, the NYARNG published Orders 242-002 reducing him in rank from MSG/E-8 to SFC/E-7 effective 30 August 2002 in accordance with National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 11-54 (voluntary reduction).

7.  He entered active duty in support of Operation Noble Eagle on 3 September 2002 and he was released from active duty on 29 August 2003.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows his rank and grade as SFC/E-7.

8.  On 2 August 2004, the NYARNG published Orders 215-1020 discharging him from the ARNG and transferring him to the Retired Reserve effective 6 August 2004.  The orders show his rank/grade as SFC/E-7.

9.  He was discharged from the ARNG on 6 August 2004.  His NGB Form 22 shows he completed 23 years, 11 months, and 29 days of service during this period.  Additionally, this form shows in:

* item 5a (Rank) – SFC
* item 5b (Pay Grade) – E-7
* item 6 (Date of Rank) – 30 August 2002

10.  On 23 September 2013, the U.S. Army Human Resources Command published Orders C09-396903 placing him on the Retired List in the rank of SFC effective 4 September 2013 (his 60th birthday) under the provisions of Title 10, U.S. Code, section 12731.

11.  Title 10, U.S. Code, section 12731, states a person is entitled to retired pay upon application 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 (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.

14.  Army Regulation 135-180, paragraph 1-4, states that 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 MSG/E-8 on 10 February 2000 and held that grade until 30 August 2002 when he was voluntarily reduced to SFC/E-7 for the purpose of mobilization.  There is no evidence of record that shows he was reduced for misconduct or any other negative/derogatory reason.

3.  The applicant's record should be corrected to show he retired in the rank/grade of MSG/E-8 on his 60th birthday and he should be paid all due retired pay 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 the evidence presented is 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:

* amending U.S. Army Human Resources Command Orders C09-396903, dated 23 September 2013, to show he was placed on the Retired List in the rank/grade of MSG/E-8 effective 4 September 2013
* paying him all retired pay due as a result of this correction



      _________________________
                  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)                                         AR20130020817



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ABCMR Record of Proceedings (cont)                                         AR20130020817



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