IN THE CASE OF:  	  

		BOARD DATE:  25 November 2014	  

		DOCKET NUMBER:  AR20140007324 


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, correction of his records to show he was placed on the Retired List on his 60th birthday in the rank/grade of sergeant first class (SFC)/E-7 vice staff sergeant (SSG)/E-6 with back retired pay.

2.  The applicant states, in effect, he served in the Kansas Army National Guard (KSARNG) and entered active duty on 28 July 1981.  His DD Form 214 (Certificate of Release or Discharge from Active Duty), ending on 9 February 1983, shows his rank/grade as SFC/E-7, effective 16 January 1980. 

3.  The applicant provides:

* U.S. Army Reserve (USAR) Orders D-06-036713, dated 4 June 1985
* DD Form 214, ending on 9 February 1983
* ARNG Retirement Points History Statement
* Retirement Orders P08-926117, dated 25 August 2010

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's records show he was born in September 1950.

3.  He enlisted in the KSARNG on 7 June 1972.  He entered active duty for training (ADT) on 15 September 1972 and completed training for military occupational specialty (MOS) 71H (Personnel Specialist).  He was honorably released from ADT on 12 January 1973. 

4.  He served in a variety of positions and/or units within the ARNG, mainly with the 891st Engineer Battalion.  He was advanced to SSG/E-6 on 10 June 1977.

5.  On 16 January 1980, the KSARNG published Orders 1-5 promoting him to platoon sergeant/E-7 and awarding him primary MOS 12B4O (Combat Engineer), secondary MOS 75Z4O (Personnel Senior Sergeant), and the additional MOS 71D4O (Legal Specialist).

6.  On 21 July 1981, he executed a 3-year extension in the ARNG while holding the rank/grade of SFC/E-7.

7.  He entered active duty on 28 July 1981 and he was honorably released from active duty on 9 February 1983.  His DD Form 214 for this period of service listed his rank/grade as SFC/E-7 with an effective date of 16 January 1980. 

8.  He was honorably discharged from the ARNG on 9 February 1983 and he was transferred to the USAR Control Group (Reinforcement).  His National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) for this period of service listed his rank/grade as SFC/E-7 with an effective date of 16 January 1980.

9.  On 4 June 1985, the USAR Personnel Center, St. Louis, MO published Orders 0-06-036713 honorably discharging him from the USAR effective 6 June 1985.  The orders listed his rank/grade as SFC/E-7. 

10.  Item 18 (Appointments and Reductions) of his DA Form 2-1 (Personnel Qualification Record) listed the rank of SFC as the highest rank he held. 

11.  After a break in service, he enlisted in the KSARNG in the rank/grade of sergeant (SGT)/E-5 on 21 September 1987.  He was promoted to SSG/E-6 on 19 September 1988.  He also executed two 6-year extensions on 5 August 1990 and on 3 July 1996.

12.  On 7 October 1996, the KSARNG issued him a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). 

13.  He was honorably discharged from the ARNG and he was transferred to the Retired Reserve on 20 September 2002.  His discharge orders and resultant NGB Form 22 listed his rank as SSG.

14.  On 4 January 2009, as he approached age 60, he submitted a DD Form 108 (Application for Retired Pay Benefits).  He indicated the highest military grade he held was E-7.

15.  On 25 August 2010, the U.S. Army Human Resources Command, St. Louis, MO, published Orders P08-926117 placing him on the Retired List in his retired rank/grade of SSG/E-6 effective 6 September 2010. 

16.  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.

17.  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.

DISCUSSION AND CONCLUSIONS:

1.  By law and regulation, 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 the rank/grade of SFC/E-7, on 16 January 1980, and he held that grade until 
9 February 1983 when he was honorably released from active duty and discharged from the ARNG. 

3.  After a period in the Individual Ready Reserve, he again enlisted in the KSARNG in the rank/grade of SGT/E-5 on 21 September 1987.  He was promoted to SSG/E-6 and he was ultimately transferred to the Retired Reserve on 20 September 2002 in the rank/grade of SSG/E-6.

4.  Nothing in his records shows he was reduced from the rank of SFC/E-7 for misconduct or any other negative/derogatory reason.  Therefore, he should be entitled to correction of his records to show he retired in the rank/grade of SFC/ E-7 on his 60th birthday and restoration of all 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 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 P08-926117 issued by the U.S. Army Human Resources Command, on 25 August 2010, to show he was retired in the rank/grade of SFC/E-7, effective 6 September 2010

* auditing his pay records and paying him all retired pay due 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)                                         AR20140007324



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ABCMR Record of Proceedings (cont)                                         AR20140007324



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