BOARD DATE: 30 October 2014
DOCKET NUMBER: AR20140002809
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 to be advanced on the Retired List to the rank/grade of first lieutenant (1LT)/O-2.
2. The applicant states:
a. Something failed regarding his pay grade status at retirement in 2004; it should have been O-2, but currently remains as E-6.
b. He corresponded with the Retirement and Annuities office in 2004 about his final pay grade and was told he needed to wait until 15 December 2013 to request a pay grade increase. However, this appears to be applicable to Regular Army retired Soldiers. As a Guard retired Soldier, he should have been retired at his highest service grade, but wasn't.
c. He retired from the Alaska Army National Guard (ARNG) on 8 November 2002 in the rank of staff sergeant (SSG)/E-6, but he previously held the grade of O-2 while serving on active duty.
3. The applicant provides:
* letter from the Army Review Boards Agency, dated 29 January 2014
* Honorable Discharge Certificate from the U.S. Army Reserve (USAR)
* retirement orders, dated 18 September 2003
* discharge orders, dated 7 November 2002
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DA Form 1569 (Transcript of Military Record)
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
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 commissioned as a second lieutenant in the USAR on 17 May 1967 and he entered active duty. He was promoted to 1LT effective 17 May 1968. On 8 August 1969, he was honorably released from active duty and transferred to the USAR Control Group (Reinforcement) after completing 2 years, 2 months, and 22 days of creditable active service.
3. He enlisted in the ARNG on 30 May 1986.
4. On 26 August 2002, he received his notification of eligibility for retired pay at age 60 (20-year letter).
5. On 9 November 2002, he was honorably discharged from the ARNG in the rank of SSG.
6. He was retired and placed on the Retired List on 18 January 2004 in the rank of SSG.
7. Paragraph 2-11c(2) of Army Regulation 135-180 (Qualifying Service for Retired Pay Nonregular Service) states if the Soldier was transferred to the Retired Reserve or discharged on or after 25 February 1975, retired grade will be that grade which a commissioned officer or enlisted Soldier held while on active duty or in an active Reserve status for at least 185 days or 6 calendar months.
DISCUSSION AND CONCLUSIONS:
1. Although the applicant retired from the ARNG as a SSG, he also held an appointment as a 1LT in an active Reserve status from May 1967 to August 1969.
2. Since the governing regulation states the retired grade will be that grade which a commissioned officer held while in an active Reserve status for at least 185 days or 6 calendar months, it would be appropriate to correct his military records to show he was placed on the Retired List in the rank and pay grade of 1LT/O2 effective 18 January 2004.
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 showing he was placed on the Retired List in the rank and pay grade of 1LT/O2 effective 18 January 2004 and paying him all due retired pay 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) AR20140002809
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ABCMR Record of Proceedings (cont) AR20140002809
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