IN THE CASE OF:
BOARD DATE: 12 March 2015
DOCKET NUMBER: AR20140011335
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 her records to show she was placed on the Retired List in the rank/grade of master sergeant (MSG)/E-8 vice sergeant first class (SFC)/E-7.
2. The applicant states she held the rank/grade of MSG/E-8 for over 3 years and she had no misconduct or nonjudicial punishment involved. She was forced to take an administrative reduction in rank in order to enter the Active Guard Reserve (AGR) program in 2002.
3. The applicant provides:
* Retired Orders Number C-05-494313 and amendment
* DA Form 1506 (Statement of Service-for Computation of Length of Service for Pay Purposes)
* Marriage certificate
* Enlisted Record Brief
* DD Form 214 (Certificate of Release or Discharge from Active Duty), ending on 31 January 1999, 31 October 1994, 12 September 1990, and 30 March 1993
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* Orders 02-182-00032, reduction to SFC/E-7
* Orders 126-235, promotion to MSG/E-8
* Multiple AGR Orders and amendments
* Request for name change
CONSIDERATION OF EVIDENCE:
1. The applicant's records show she was born in December 1954.
2. She enlisted in the U.S. Army Reserve (USAR) on 1 July 1982 and she held military occupational specialty (MOS) 71L (Administrative Specialist). She entered active duty on 13 September 1987 and she was honorably released from active duty on 12 September 1990.
3. She enlisted in the Illinois Army National Guard (ILARNG) on 16 April 1991. She entered active duty for training (ADT) on 14 August 1994 and she completed training for award of MOS 91B (Medical Specialist). She was honorably released from ADT on 31 October 1994.
4. On 11 September 1995, she entered active duty for special work (ADSW). She was assigned to the State Area Command, ILARNG and she was advanced to SFC/E-7 in the ARNG on 1 January 1996.
5. On 1 July 1998, ILARNG published Orders 126-235 promoting her to the rank/grade of MSG/E-8 in the ARNG effective 1 July 1998 and awarding her primary MOS 75H (Human Resources Specialist).
6. On 31 January 1999, she was honorably released from active duty at the completion of her ADSW. Her DD Form 214 for this period of service (11 September 1995 to 31 January 1999) listed her rank/grade as MSG/E-8 with an effective date of 1 July 1998.
7. Also on 31 January 1999, she was honorably discharged from the ILARNG for the purpose of enlisting in a troop program unit of the USAR. Her NGB Form 22 for this period of service (16 April 1991 to 31 January 1999) also listed her rank/grade as MSG/E-8 with an effective date of 1 July 1998.
8. On 1 February 1999, she enlisted in the USAR in the rank/grade of MSG/E-8. She was assigned to various troop program units of the USAR and performed duties of MSG/E-8 with the 719th Medical Detachment; 687th Quartermaster Battalion; 14th Battalion (Noncommissioned Officer Academy); and 244th Aviation Brigade, 88th Regional Support Command.
9. On 1 July 2002, Headquarters, 88th Regional Support Command published Orders 2-182-00032 administratively reducing her from MSG/E-8 to SFC/E-7, with a date of rank as 1 January 1996.
10. On 14 July 2002, she entered active duty in an AGR status. She continued her service on active duty in an AGR status, through multiple orders/extensions of her AGR status, in the rank/grade of SFC/E-7.
11. On 1 August 2002, U.S. Army Reserve Personnel Command, St. Louis, MO, issued her a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).
12. On 13 June 2005, she executed an indefinite reenlistment in the USAR. She served in a variety of assignments in primary MOS 79V (Retention and Training Noncommissioned Officer).
13. She turned 60 years of age in December 2014.
14. On 16 May 2014, the U.S. Army Human Resources Command published Orders C-05-494313 releasing her from active duty effective 31 December 2014 and placing her on the Retired List in her retired rank/grade of SFC/E-7 effective 1 January 2015. The authority for her retirement is Title 10, U.S. Code (USC), sections 3914 and 3961.
15. Her DD Form 214 for this period of service (14 July 2002 to 30 November 2014) listed her rank/grade as SFC/E-7 with an effective date of 1 January 1996.
16. Title 10, USC, section 3914, states under regulations to be prescribed by the Secretary of the Army, an enlisted member of the Army who has at least 20, but less than 30, years of service computed under section 3925 of this title may, upon his/her request, be retired.
17. Title 10, USC, section 3925, states for the purpose of determining whether an enlisted member of the Army may be retired under section 3914 or 3917 of this title, his/her years of service are computed by adding all active service in the armed forces and service computed under section 3683 [1] of this title. Time required to be made up under section 972(a) of this title may not be counted in determining years of service under subsection (a).
18. Title 10, USC, section 3961 states:
a. The retired grade of a regular commissioned officer of the Army who retires other than for physical disability, and the retired grade of a reserve commissioned officer of the Army who retires other than for physical disability, is determined under section 1370 of this title.
b. Unless entitled to a higher retired grade under some other provision of law, a Regular or Reserve of the Army not covered by subsection (a) who retires other than for physical disability retires in the regular or reserve grade that he/she holds on the date of his/her retirement.
19. Title 10, USC, section 3963, states:
(a) A Reserve enlisted member of the Army described in subsection (b) who is retired under section 3914 of this title shall be retired in the highest enlisted grade in which the member served on active duty satisfactorily (or, in the case of a member of the National Guard, in which the member served on full-time National Guard duty satisfactorily), as determined by the Secretary of the Army.
b. This section applies to a Reserve enlisted member who (1) at the time of retirement is serving on active duty (or, in the case of a member of the National Guard, on full-time National Guard duty) in a grade lower than the highest enlisted grade held by the member while on active duty (or full-time National Guard duty); and (2) was previously administratively reduced in grade not as a result of the members own misconduct, as determined by the Secretary of the Army.
c. This section applies with respect to Reserve enlisted members who are retired under section 3914 of this title after 30 September 1996.
DISCUSSION AND CONCLUSIONS:
1. The applicant was an ARNG Soldier who was promoted to MSG/E-8 on 1 July 1998, while serving on active duty in an AGR program. She served on active duty in this rank/grade from 1 July 1998 (the date she was promoted) to 31 January 1999 (the date she was released from active duty).
2. She then enlisted in the USAR on 1 February 1999 in the rank/grade of MSG/E-8 and served in this rank/grade until 30 June 2002. She was administratively reduced to SFC/E-7, not due to misconduct, on 30 June 2002.
3. She served on active duty as a Reserve Component Soldier in the AGR program in the rank/grade of SFC/E-7 from 14 July 2002 to 31 January 2014, the date she retired by reason of completion of required active service.
4. The authority for her retirement is Title 10, USC, sections 3914 and 3961:
a. Section 3914 of the statute authorizes an enlisted member of the Army who has at least 20, but less than 30, years of service computed under section 3925 of this title, to retire upon request. She completed the required active service and requested to retire.
b. Section 3963 applies with respect to Reserve enlisted members who are retired under section 3914 of this title after 30 September 1996, which is applicable in her case. This section states a Reserve enlisted member of the Army described in subsection (b) who is retired under section 3914 of this title shall be retired in the highest enlisted grade in which the member served on active duty satisfactorily (or, in the case of a member of the National Guard, in which the member served on full-time National Guard duty satisfactorily), as determined by the Secretary of the Army. She was advanced to MSG/E-8 while a member of the ARNG on active duty and satisfactorily held this rank/grade. Her reduction to SFC/E-7 in 2002 was administrative in nature and not due to misconduct.
c. While her DD Form 214 for the period of service from 14 July 2002 to 30 November 2014 correctly listed her rank/grade as SFC/E-7 with an effective date of 1 January 1996 because this is the rank/grade she held at the time of her retirement, her retirement orders did not retire her in the appropriate rank/grade.
d. It appears she met the statutory requirements to retire in the highest rank/grade she satisfactorily held - that of MSG/E-8 and should be entitled to correction of her records as such with entitlement to back 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 C-05-494313 issued by the U.S. Army Human Resources Command on 16 May 2014 to show she was placed on the Retired List in the rank/grade of MSG/E-8, effective 1 December 2014
* auditing her pay records and paying her 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) AR20140011335
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20140011335
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2007 | 20070009467
On 30 September 2000, she retired from the Active Guard Reserve (AGR) program with 20 years, 5 months, and 2 days of creditable active service; her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows her rank and pay grade as MSG/E-8. The laws or the regulation the applicant was separated under that govern retirement and retired grades provide no discretionary authority that allows for the administrative reduction of an enlisted Soldier who has not completed a promotion...
ARMY | BCMR | CY2005 | 20050001997C070206
National Guard Regulation (NGR) 600-200 (Enlisted Personnel Management) contains guidance that differs from the statutory retirement grade provisions and from the guidance contained in Army Regulation 635-200 regarding grade actions authorized based on the non-completion of a service obligation. The evidence of record confirms the statutory authority for the applicant’s retirement was 10 USC 3914, and the governing statute regarding his retired grade was 10 USC 3961(b). The laws governing...
ARMY | BCMR | CY2001 | 2001060098C070421
The applicant requests correction of military records as stated in the application to the Board and as restated herein. EVIDENCE OF RECORD : The applicant's military records show: It states, in pertinent part, that retired soldiers are entitled to be advanced on the Retired List to the highest grade they held and in which they satisfactorily served on active duty, as determined by the Secretary of the Army, when their active service plus service on the retired list totals 30 years.
ARMY | BCMR | CY2011 | 20110010831
Having had prior active enlisted service from 2 August 1965 to 1 August 1968 and 13 January 1970 to 18 May 1974 (he was discharged as a specialist five (SP5)/E5), the applicant's records show he enlisted in the Massachusetts ARNG (MAARNG) on 8 March 1979 for 3 years in the rank/grade of SGT/E-5. Title 10, USC, section 3963 (Highest grade held satisfactorily: Reserve enlisted member reduced in grade not as a result of the member's misconduct) states a Reserve enlisted member of the Army...
ARMY | BCMR | CY2007 | 20070011375
On 6 June 1996, the applicant requested active duty retirement with an effective date of 31 January 1997. Chapter 12 sets policies and procedures for voluntary retirement of Soldiers because of length of service and governs the retirement of Soldiers (Active Army, Army National Guard, and United States Army Reserve) who are retiring in their enlisted status. The applicant's retired pay is based on his retired grade of rank of SGT/E-5 as shown in Orders 161-2.
ARMY | BCMR | CY2012 | 20120005773
In order to support a change to the applicant's grade at the time of retirement or his advancement on the Retired List, there must be evidence that the applicant completed the satisfactory service requirement to complete 2 years of active duty service in the higher grade of MSG. Further, the evidence of record and independent evidence submitted by the applicant while showing he was twice promoted to 1SG/MSG and twice administratively reduced to SFC, not due to his own misconduct, while...
ARMY | BCMR | CY2001 | 2001060100C070421
On 20 December 1989, a panel of this Board denied the applicant’s request to have his records corrected to show he was promoted to the pay grade of E-9, effective 1 March 1983. In effect, this decision was based on the fact that the Board disagreed with the ARPERSCOM position that there was no evidence to show the applicant was reduced to SFC/E-7 at the time he voluntarily entered active duty in that rank and pay grade. Further, there is no evidence contained in the record that shows that...
ARMY | BCMR | CY2012 | 20120006244
c. He recently received correspondence from the recorder of the Army Grade Determination Review Board (AGDRB) informing him that it appears he should have been placed on the Retired List in the grade of E-7 and he should apply to the Army Board for Correction of Military Records (ABCMR) for review of his case. 10 USC, section 3964 (Higher grade after 30 years of service: warrant officers and enlisted members), provides that each retired member of the Army covered by subsection (b) who is...
ARMY | BCMR | CY2013 | 20130009681
Correction of her retirement orders to show she was retired for a disability vice in accordance with (IAW) Title 10, U.S. Code (USC), chapter 61. c. Correction of her DD Form 214 and retirement orders to show she received a permanent disability retirement effective 4 November 2004 vice being placed on the Temporary Disability Retired List (TDRL). Orders Number D139-27, issued by the U.S. Army Physical Disability Agency (USAPDA), dated 19 May 2010, show: * she held the rank of SGT * she was...
ARMY | BCMR | CY2002 | 2002077590C070215
EVIDENCE OF RECORD : The applicant's military records show: It denied the applicant’s advancement to 1SG/E-8 on the Retired List because he had never served in that rank and pay grade while on active duty, which is required under the provisions of the advancement law. DISCUSSION : Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded: