IN THE CASE OF:
BOARD DATE: 12 November 2014
DOCKET NUMBER: AR20140004089
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 retired rank/grade to show sergeant first class (SFC)/E-7 instead of staff sergeant (SSG)/E-6.
2. The applicant states:
* he held the rank/grade of SFC/E-7 when he was discharged from active duty
* he enlisted in the Mississippi Army National Guard (MSARNG) approximately 2 years later in the rank/grade of sergeant (SGT)/E-5 because there were no E-7 positions available
* he was promoted to the rank/grade of SSG/E-6 in the MSARNG
* he was always told he would retire in the highest rank successfully held
* he retired on 24 December 2013 and his retirement orders show his rank/grade as SSG/E-6
* he included a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) showing he held the rank/grade of SFC/E-7 for 2 years and 1 month
3. The applicant provides:
* two DD Forms 214
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
CONSIDERATION OF EVIDENCE:
1. The applicant enlisted in the Regular Army on 10 January 1972.
2. U.S. Army Military Personnel Center Orders 186-1, dated 3 November 1980, promoted the applicant to the rank/grade of SFC/E-7 effective 1 December 1980 with a date of rank of 5 November 1980.
3. On 28 November 1982, he was honorably discharged in the rank/grade of SFC/E-7.
4. On 23 April 1986, he enlisted in the MSARNG in the rank/grade of SGT/E-5.
5. Headquarters, 155th Armored Brigade, MSARNG, Orders 37-2, dated 4 June 1987, promoted him to the rank/grade of SSG/E-6, effective 19 May 1987.
6. On 7 December 1990, the applicant was ordered to active duty in support of Operations Desert Shield/Desert Storm. On 15 May 1991, he was honorably released from active duty to the control of the MSARNG.
7. His NGB Form 22 shows he was honorably discharged from the MSARNG and transferred to the U.S. Army Reserve Control Group (Retired Reserve) in the rank/grade of SSG/E-6 effective 1 July 1995.
8. U.S. Army Human Resources Command Orders C12-399340, dated 10 December 2013, placed him on the Army of the United States Retired List effective 24 December 2013 in the retired rank/grade of SSG/E-6 at age 60.
9. 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.
10. 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.
11. 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 12731, 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 status 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 during his or her entire period of service. Service in the highest grade will not be deemed satisfactory if it is determined that the reversion to a lower grade was due to misconduct or court-martial or if there is information in the Soldier's service records to indicate clearly that the highest grade was not served satisfactorily.
2. The evidence of record shows he was promoted to the rank/grade of SFC/E-7 on 1 December 1980 and he held that rank until his discharge from the Regular Army on 28 November 1982. He voluntarily enlisted in the MSARNG in April 1986 in the reduced rank/grade of SGT/E-5. There is no evidence that shows he was ever reduced for misconduct or any other negative/derogatory reason.
3. However, he was erroneously placed on the Army of the United States Retired List effective 24 December 2013 in the retired rank/grade of SSG/E-6.
4. In view of the above, his records record should be corrected to show he retired at age 60 in the rank/grade of SFC/E-7 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 C12-399340, dated 10 December 2013, to show he was placed on the Retired List in the rank/grade of SFC/E-7, effective 24 December 2013
* paying him all retired pay due in pay grade E-7 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) AR20140004089
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