IN THE CASE OF:	  

		BOARD DATE:	  14 July 2015

		DOCKET NUMBER:  AR20140018516 


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 in the rank/grade of sergeant first class (SFC)/E-7, the highest grade he satisfactorily held, instead of staff sergeant (SSG)/E-6.

2.  The applicant states the highest grade he held for pay purposes was E-7. 

3.  The applicant provides –

* promotion order to SFC
* reduction orders to SSG
* DD Form 108 (Application for Retired Pay Benefits
* DD Form 214 (Certificate of Release or Discharge from Active Duty) 

CONSIDERATION OF EVIDENCE:

1.  His date of birth is 13 August 1954.  

2.  Following prior service in the Regular Army the applicant enlisted in the Utah Army National Guard (UTARNG) on 1 August 1975.

3.  His records contain:

	a.  Orders showing he was promoted to SFC effective 3 June 1989.  He was awarded military occupational specialty 76Y4O (Unit Supply Sergeant).  His unit is shown as Headquarters and Headquarters Company (HHC), 141st Military Intelligence (MI) Battalion, Draper, UT. 

	b.  Evaluation reports showing he performed successfully as an SFC. 

	c.  Records showing he received two Army Achievement Medals while serving as an SFC.

	d.  Headquarters, 300th Military Intelligence Linguist Brigade, UTARNG, issued Orders 2-1, dated 10 January 1994, reducing him from SFC to SSG under the provisions of National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 6-44i, effective 10 January 1994.  He was awarded primary PMOS 92Y3O (Unit Supply Sergeant).  The special instructions show, "Involuntary reduction.  Soldier assigned to Para 109 Ln 05."

4.  In support of his request he provides:

	a.  A DD Form 214 showing he entered active duty on 3 June 1979 and served until 11 July 1992 when he was honorably released from active duty due to unsatisfactory performance.

	b.  An NGB Form 22 (National Guard Bureau Report of Separation and Record of Service) showing he was discharged and transferred to the U.S. Army Reserve (USAR) Control Group (Retired) effective 21 March 1995 as an SSG.

	c.  A DD Form 108, dated 25 February 2013, showing he applied for retired pay benefits as an SFC effective 13 August 2014. 

5.  Orders C07-495886, U.S. Army Human Resources Command, Fort Knox, Kentucky, dated 22 July 2014, placed him on the retired list effective 13 August 2014 as an SSG.  He was authorized retired pay under Title 10, U.S. Code, section 12731.

6.  A review of his available records failed to reveal any record of misconduct; punishment pursuant to Article 15, Uniform Code of Military Justice, or court-martial; or any information to indicate clearly that the highest grade he held was not served in satisfactorily.

7.  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.

8.  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.

9.  National Guard Regulation 600-200, paragraph 6-44i states that Soldiers who lose their position due to unit reorganization, inactivation or full time support utilization requirements, who cannot be properly utilized in their units will be transferred to another unit so that they can be utilized properly.  If reassignment is not appropriate, they may be retained in current rank only up to 1 year before being involuntarily reduced to fill a position, or transferred to the Inactive National Guard or Individual Ready Reserve.

DISCUSSION AND CONCLUSIONS:

1.  By law, 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.  The evidence of record shows he was promoted to SFC on 3 June 1989 and he was reduced to SSG on 10 January 1994.  It appears he was reduced because he could no longer be properly utilized in the highest grade he had held. While the special instructions of the reduction orders show "Involuntary reduction," there is no evidence of record that shows he was reduced for misconduct or any other negative/derogatory reason.  

3.  The applicant's record should be corrected to show his request for retired pay as an SFC was approved.
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:  

	a. showing his request for retired pay as an SFC effective 13 August 2014 was received in a timely manner and was approved; and 

	b.  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)                                         AR20130011626



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ABCMR Record of Proceedings (cont)                                         AR20140018516



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