IN THE CASE OF:  	  

		BOARD DATE:  7 April 2015	  

		DOCKET NUMBER:  AR20150004547 


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 that he is being placed on the Retired List on 1 June 2015 in the rank/grade of sergeant first class (SFC)/E-7 vice staff sergeant (SSG)/E-6.

2.  The applicant states:

   a.  He served in the U.S. Marine Corps (USMC) for 8 years from 1991 to 1999.  He enlisted in the U.S. Army Reserve (USAR) in 2001 and was mobilized and served on active duty for 5 years between 2001 and 2008.  He spent 4 years and 6 months of this active duty service as an SFC.  He is retiring from active duty on 1 June 2015 with over 21 years of military service.  
   
   b.  Realizing he had over 13 years of active service, he enlisted in the Regular Army (RA) in 2008 and served continuously until the present.  In order to enlist in the RA, he had to enlist in the rank of SSG.  He was not happy about taking a reduction in rank but he eventually saw the light at the end of the tunnel. He did so because he was assured that he would retire under the military "high-3" program in which one retires at the [average] of the highest paid 3 years of active service and he would be retired in the rank of SFC.
   
   c.  However, this has not happened and his retirement orders state he will be placed on the Retired List in the rank of SSG which will result in a $400 cut in retired pay.  The Retirement Services Center, Fort Bliss, TX, told him this needed to be fixed by the Army Board for Correction of Military Records.
	d.  This was likely caused by a clerical error as the "high-3" is usually the rank held for the last 3 years before retirement but this is not correct in his case.  He was promoted to SFC on 1 December 2003 while serving on active duty as a member of the USAR and he remained on active duty as an SFC until he enlisted in the RA in the rank of SSG.  He served on active duty in the rank of SFC for 4 years.  He believes he earned the retirement rank of SFC, especially since he took a reduction in rank to enlist in the RA during the height of the war on terrorism and deployed to Afghanistan.

3.  The applicant provides two DD Forms 214 (Certificate of Release or Discharge from Active Duty) and two orders.

CONSIDERATION OF EVIDENCE:

1.  Having had prior active service and Reserve service in the USMC, the applicant enlisted in the USAR in the rank/grade of sergeant/E-5 on 2 July 2001. He was promoted to the rank/grade of SSG/E-6 on 12 December 2001.

2.  He was ordered to active duty as a member of the USAR in support of Operation Noble Eagle and he entered active duty on 27 January 2003.  He was promoted to the rank/grade of SFC/E-7 on 1 December 2003.

3.  He was honorably released from active duty on 25 January 2007 in the rank of SFC to the control of the USAR.  He completed 3 years, 11 months, and 29 days of creditable active service during this period.  The DD Form 214 he was issued for this period of service shows he had 8 years and 13 days of prior active service.

4.  He was ordered to active duty as a member of the USAR in support of Operation Enduring Freedom and he entered active duty on 15 June 2007. 

5.  On 14 June 2008, he was honorably released from active duty to the control of the USAR, in the rank of SFC.  He completed 1 year of creditable active service during this period.  The DD Form 214 he was issued for this period of service shows he had 12 years and 8 days of prior active service.  He was subsequently discharged from the USAR.

6.  He enlisted in the RA on 7 July 2008 in the rank of SSG and he is currently serving on active duty in the rank of SSG and is assigned to Fort Bliss, TX.

7.  The applicant provides Orders 054-0047, dated 23 February 2015, issued by Headquarters, U.S. Army Garrison, Fort Bliss, wherein it shows he will be honorably retired on 31 May 2015 in the rank of SSG and he will be placed on the Retired List in the rank of SSG on 1 June 2015.  These orders show his date of rank to SSG as 7 July 2008 and that he was voluntarily retiring with 20 years, 5 months, and 16 days of active duty service.  However, his basic pay was based on 21 years, 9 months, and 14 days of active duty service.

8.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 12, sets policies and procedures for voluntary retirement of Soldiers because of length of service and governs the retirement of Soldiers (active RA, Army National Guard (ARNG) and USAR) who are retiring in an enlisted status.  It states RA Soldiers are retired in the rank/grade the Soldier holds on the date of retirement (emphasis added), assuming they served in the rank/grade satisfactorily (emphasis added).  As an exception, ARNG and USAR Soldiers serving on active duty as a member of the ARNG/USAR at the time of retirement in a grade lower than their highest enlisted grade in which they served satisfactorily, who were administratively reduced in grade not as a result of their own misconduct, will retire at the highest enlisted grade in which they served.

9.  Service members receive a percentage of the final basic pay that corresponds to the retired grade and years of service at retirement.  Retired pay would be calculated based on the service member's high-36 month average computed based on the rate for basic pay.

10.  Title 10 U.S. Code, section 3964, states retired members of the Army who are retired with less than 30 years of active service are entitled, when their active service plus their service on the Retired List totals 30 years, to be advanced on the Retired List to the highest grade in which they served on active duty satisfactorily or, in the case of a member of the USAR, in which they served on full-time duty satisfactorily (emphasis added). 

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant is serving in the RA in the rank of SSG and he will be honorably retired on 31 May 2015, in the rank of SSG.  In accordance with applicable regulations and laws, he will appropriately be placed on the Retired List on 1 June 2015, in the rank/grade of SSG/E-6, the rank/grade he held at the time of retirement and the highest rank he held while serving in the RA.

2.  As he served satisfactorily on active duty as a member of the USAR in the rank/grade of SFC/E-7, once he reaches a total of 30 years of combined active and retired service (emphasis added), he could petition to be advanced to the highest pay grade he held (SFC/E-7) and pay recalculation would be done at that time.   
3.  In view of the foregoing, he is not entitled to the requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ____X___ DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      ___________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)                                         AR20150004547



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ABCMR Record of Proceedings (cont)                                         AR20150004547



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