BOARD DATE:	  14 August 2014

		DOCKET NUMBER:  AR20130020938 


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 rank of first lieutenant (1LT).

2.  The applicant states a clerical error occurred on his original discharge orders. He later received a corrected copy.  

3.  The applicant provides copies of the following:

* Orders Number 052-053
* Orders Number 052-053 (Corrected Copy)
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* Honorable Discharge Certificate
* letter from the Defense Finance and Accounting Service (DFAS)
* his letter to the Army Grade Determination Review Board (AGDRB) and their response

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 provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases 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 sufficient bases to waive the statute of limitations.

2.  With prior enlisted service, on 30 June 1974, the applicant was appointed in the Mississippi Army National Guard (MSARNG) in the rank of second lieutenant. He was promoted to 1LT on 29 June 1977.

3.  On 1 June 1978, he was honorably discharged from the MSARNG by reason of resignation (incompatible occupation) and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement), in the rank of 1LT.  

4.  On 4 January 1980, he was released from the USAR and reassigned to the MSARNG, in the rank of 1LT.  He was again appointed in the MSARNG, effective 5 January 1980.  He was honorably discharged on 15 July 1981, by reason of failure to be selected for promotion, and he was transferred to the USAR Control Group in the rank of 1LT.  

5.  He enlisted in the MSARNG, in pay grade E-5, on 3 April 1982.  He was promoted to staff sergeant (SSG)/E-6 on 30 November 1988.  He extended his current enlistment in the MSARNG on 2 February 1992. 

6.  On 21 March 1994, he was honorably discharged from the MSARNG and he was transferred to the USAR Control Group (Retired).  His NGB Form 22 lists his rank and pay grade as SSG/E-6.

7.  He provided copies of the following:

   a.  Orders Number 052-053, issued by The Adjutant General's (TAG) Office, MSARNG, dated 21 March 1994, discharging him effective 21 March 1994 in the permanent rank of SSG/E-6.  These orders also show he was being placed on the Mississippi Retired List in the retired rank of sergeant first class (SFC)/E-7.

   b.  Orders Number 052-053 (Corrected Copy), issued by TAG's Office, MSARNG, dated 21 March 1994, discharging him effective 21 March 1994.  These orders show he was being placed on the Mississippi Retired List in the permanent grade of 1LT.

8.  He reached age 60 on 19 June 2010.  He was placed on the Army of the United States (AUS) Retired List in the rank of SSG/E-6 on this date.

9.  A DFAS, Retired Pay Department, Summary of Retired Pay Account, dated 25 January 2011, shows his date of retirement was 19 June 2010 and his retired pay rating was SSG.  His service for basic pay is listed as 38 years and 
8 months.

10.  Order Number P01-9490469, issued by the U.S. Army Human Resources Command, on 24 January 2011, placed him on the AUS Retired List in the grade of SSG effective 19 June 2010.

11.  He also provided copies of the following:

   a.  A letter, dated 25 January 2011, wherein DFAS welcomed him to the retired roll of the U.S. Army.

   b.  A letter, dated 5 April 2013, wherein he requested that the AGDRB advance him on the retired list to the highest grade he satisfactorily held while on active duty under the provisions of Title 10, U.S. Code (USC), section 3964.  He stated that although he retired on 21 March 1994, in the rank of SSG, he previously held the rank of 1LT.  

   c.  A letter, dated 3 September 2013, wherein the AGDRB advised him that Title 10, USC, section 3964, only pertained to regular retirement.  His records reflected that he was transferred to the USAR Control Group (Retired) on 21 March 1994 and placed on the retired list on his 60th birthday.  Prior to being placed on the retired list, the U.S. Army Human Resources Command (HRC) should have contacted him about his retired pay, and at that time, he should have requested the rank of 1LT/O-2.  If he felt being placed on the retired list in the rank/pay grade of SSG/E-6 was an error or injustice, he could apply to the ABCMR.

12.  Title 10, USC, section 12771a, states unless entitled to a higher grade under another provision of law, a Reserve commissioned officer, other than a commissioned warrant officer, who is transferred to the Retired Reserve is entitled to be placed on the retired list established by section 12774(a) of this title in the highest grade in which he served satisfactorily, as determined by the Secretary concerned and in accordance with section 1370(d), in the armed force in which he is serving on the date of transfer. 

13.  Title 10, USC, section 1370(d), states unless entitled to a higher grade, or to credit for satisfactory service in a higher grade, under some other provision of 

law, a Reserve officers who is entitled to retired pay under chapter 1223 of this title shall, upon application under section 12731 of this title, be credited with satisfactory service in the highest grade in which that person served satisfactorily at any time in the armed forces, as determined by the Secretary concerned in accordance with this subsection. 

14.  Title 10, USC, section 1370(d)(2), states in order to be credited with satisfactory service in an officer grade (other than a warrant officer grade) below the grade of lieutenant colonel or commander, a person covered by paragraph (1) must have served satisfactorily in that grade (as determined by the Secretary of the military department concerned) as a reserve commissioned officer in an active status, or in a retired status on active duty, for not less than six months. 

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant satisfactorily held the rank of 1LT from June 1977 to July 1981.  He enlisted in the MSARNG and was discharged on 21 March 1994 in the rank/pay grade of SSG/E-6.  On 19 June 2010, he was placed on the retired list in the rank/pay grade of SSG/E-6.

2.  Therefore, based on the available evidence that he satisfactorily held the rank of 1LT more than six months he is entitled to be placed on the retired list in the rank of 1LT based on satisfactory service in this rank under the provisions of Title 10, sections 12771 and 1370(d)(2).

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:

* amending Orders Number P01-949469, dated 24 January 2011, to show he was placed on the AUS Retired List in the rank of 1LT
* paying him any back retired pay in the higher retired rank/grade 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)                                         AR20130020938



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ABCMR Record of Proceedings (cont)                                         AR20130020938



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