IN THE CASE OF:	

		BOARD DATE:	14 July 2015

		DOCKET NUMBER:  AR20140021210


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/pay grade of staff sergeant (SSG)/E-6, the highest grade he satisfactorily held, instead of sergeant (SGT)/E-5.

2.  The applicant states he is receiving retired pay in the rank of SGT.  He held the rank of SSG from 1998 to 2004 until he was administratively reduced to SGT.  He was not reduced for adverse reasons.  He should receive retired pay in the rank of SSG.

3.  The applicant provides:

* Order Number 002-001, 2nd Battalion, 218th Field Artillery, dated
7 January 1998
* Orders Number 004-001, 39th Brigade Combat Team, dated 4 December 2005
* Orders 031-016, Oregon National Guard, dated 31 January 2007
* Orders C04-493574, U.S. Army Human Resources Command (HRC), dated 29 April 2014
* Letter from Defense Finance and Accounting Service (DFAS), dated 
5 November 2014

CONSIDERATION OF EVIDENCE:

1.  The applicant was born on 1 December 1953.

2.  Order Number 002-001, 218th Field Artillery, dated 7 January 1998, announced the applicant’s promotion to SSG.

3.  Orders Number 004-001, 2nd Battalion, 162nd Infantry, dated 4 December 2005, announced the applicant’s administrative reduction to SGT effective 
21 December 2004.

4.  Orders 031-016, Oregon National Guard, dated 31 January 2007, announced the applicants transfer to the Retired Reserve, effective 1 January 2007.

5.  Orders C04-493574, HRC, dated 29 April 2014, announced the applicant’s placement on the Retired List, effective 1 December 2013, his 60th birthdate, in accordance with Title 10, U.S. Code, section 12731.  His rank is shown as SGT, pay grade E-5.

6.  Title 10, U.S. Code, section 12731, states that a person is entitled upon application to retired pay if the person is at least 60 years of age and has performed at least 20 years of service as computed under section 12732.

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 (Army National Guard and Army Reserve Qualifying Service for Retired Pay Non-regular 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.  Army Regulation 135-180, paragraph 1-4, states that retired pay is pay granted to Soldiers and former Reserve Component (RC) Soldiers under Title 10, U.S. Code, section 1331, 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 section of an RC.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to show he was placed on the retired list in the rank/pay grade of SSG/E-6, the highest grade he satisfactorily held, instead of SGT/E-5, because he was not reduced for adverse reasons.

2.  The available evidence in this case confirms the applicant was promoted to SSG/E-6, on 7 January 1998, and he satisfactorily served in that rank until he was administratively reduced to SGT/E-5 on 21 December 2004.

3.  There is no evidence showing the applicant was ever reduced due to adverse actions.

4.  By law, in connection with a non-regular retirement, enlisted members are entitled to receive retired pay in the highest grade held satisfactorily at any time in the Armed Forces.  The evidence of record in this case confirms the highest rank/grade the applicant held satisfactorily was SSG/E-6.  However, he was improperly retired in the rank of SGT/E-5.

5.  In view of the facts of this case, the applicant’s record should be corrected to show he was authorized to receive non-regular retired pay based on the rank/grade of SSG/E-6, on 1 December 2013, the date he turned age 60 and became eligible to receive retired pay.  Further, it would be appropriate to provide him all back retired pay due 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:

a. amending Orders C04-493574, issued by the U.S. Army HRC, dated 
29 April 2014, to show he was placed on the Retired List effective 1 December 2013 in the rank/pay grade of SSG/E-6; and
   
   b.  paying him all retired pay due, in the rank of SSG/E-6, 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)                                         AR20140021210



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