IN THE CASE OF:	  

		BOARD DATE:	  20 November 2014

		DOCKET NUMBER:  AR20140005153 


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 and grade of staff sergeant (SSG)/E-6.

2.  The applicant states he was promoted to the rank of SSG on 12 May 1983 and held that rank satisfactorily until he was placed in the inactive Reserve on 26 May 1990.  He did not notice the error until he received his first retirement check. 

3.  The applicant provides an extract of his DA Form 2-1 (Personnel Qualification Record) and U.S. Army Human Resources Command (HRC) Orders P03-942379. 

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.  On 20 February 1971, the applicant enlisted in the U.S. Army Reserve (USAR).

3.  On 29 January 1972, he enlisted in the Missouri Army National Guard (MOARNG) where he served continuously through reenlistments or extensions of enlistment. 

4.  Orders 8-1, issued by Headquarters, 203d Engineer Battalion (Combat Heavy), MOARNG, dated 12 May 1983, promoted him to the rank/grade of SSG/E-6, effective that same date.

5.  Orders 146-013, issued by Headquarters, MOARNG, dated 26 May 1990, transferred him to the Inactive ARNG in the rank of SSG effective 26 May 1990.

6.  Orders 238-017, issued by Headquarters, MOARNG, dated 26 August 1990, relieved him from the Inactive ARNG and transferred him to an ARNG unit effective 6 August 1990.  The standard name line shows his rank as SGT.

7.  Orders 13-1, issued by Headquarters, 203d Engineer Battalion (Combat Heavy), MOARNG, dated 24 August 1990, reduced him from the rank/grade of SSG/E-6 to SGT/E-5, effective that same date, by reason of voluntary reduction (return from Inactive National Guard).  The orders show he was assigned to an SGT/E-5 position.

8.  Orders 044-045, issued by Headquarters, MOARNG, dated 13 February 1999, transferred him to the Texas ARNG (TXARNG) effective 5 February 1999.  His rank at the time was SGT.

9.  In connection with his assignment to the Retired Reserve he was issued a National Guard Bureau (NGB) Form 22 (NGB Report of Separation and Record of Service) showing he was discharged from the ARNG on 31 December 1999.  It shows his rank as SGT.

10.  On 7 February 2000, the TXARNG issued Orders 038-207, discharging him from the ARNG and assigning him to the Retired Reserve effective 31 December 1999.  These orders show his rank as SGT.

11.  An ARNG Retirement Points History Statement, prepared on 2 October 1998, shows his highest grade held as E-5.

12.  Orders P03-942379, issued by HRC, dated 14 March 2011, placed him on the Retired List, effective 14 January 2011, in the retired grade of SGT/E-5.

13.  Army Regulation 135-180 (Army National Guard and Army Reserve - Qualifying Service for Retired Pay Non-regular Service) implements statutory authorities governing granting retired pay to Soldiers and former Reserve Component Soldiers.  It 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. 

	a.  HRC will screen each retirement applicant's record to determine the highest grade held by him or her during his or her military service to determine the highest grade satisfactorily held.

	b.  If the Soldier was transferred to the Retired Reserve or discharged on or after 25 February 1975, the retired grade will be that grade which a commissioned officer or enlisted Soldier held while serving on active duty or in an active reserve status for at least 185 days or 6 calendar months.

	c.  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.

DISCUSSION AND CONCLUSIONS:

1.  Soldiers are discharged in the rank held at the time of separation.  Therefore, the documents related to his discharge from the TXARNG and his assignment to the Retired Reserve, at the time, correctly reflect his rank/grade as SGT/E-5.

2.  He was promoted to SSG effective 12 May 1983.  He was voluntarily reduced to SGT on 24 August 1990 in connection with a transfer from the Inactive ARNG to an active status in the ARNG.  He completed approximately 7 years service in pay grade E-6 in an active reserve status.

3.  Advancement on the Retired List to the highest grade satisfactorily held may be accomplished when a Reserve Component Soldier makes application for retired pay and is accomplished strictly for financial reasons. As such, given that 





evidence shows he held the pay grade of E-6 in an active reserve status for at least 185 days or 6 calendar months he is entitled to be placed on the Retired List in the rank/grade of SSG/E-6.

4.  In view of the foregoing, the applicant is entitled to correction of his record as recommended below. 

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 P03-942379, issued by HRC, dated 14 March 2011, to show he was placed on the Retired List in the retired grade of "Staff Sergeant/E-6."



      ____________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)                                         AR20140005153



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140005153



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1