PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:                26 April 2000
	DOCKET NUMBER:        AR1999014173

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Ms. Joyce A. Wright		Analyst	

  The following members, a quorum, were present:

	Mr. Stanley Kelley		Chairperson	
	Ms. Karol A. Kennedy		Member	
	Mr. Curtis L. Greenway		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, correction of his military records to show that his retired pay is computed on the pay grade of SFC/E7 instead of 2LT/0-1.

3.  The applicant states, in effect, that he would receive a higher payment as SFC/E-7, the highest enlisted grade held, than that of a 2LT/0-1, the highest rank held.  In support of his application he submits a copy of his Notification of Eligibility for Retired Pay (20 year letter), DD Form 108 (Application for Retired Pay Benefits), DD Form 2656 (Survivor Benefits Plan), reduction and promotion orders, NGB Form 22 (Report of Separation and Record of Service), request for discharge, approval of discharge, NGB Form 23B (Army National Guard Retirement Points History Statement) and a copy of Oklahoma Army and Air National Guard Orders 255-49, dated 23 October 1996.

4.  The applicant’s military records show that he enlisted in the Oklahoma Army National Guard (OKARNG) on 1 July 1960.  He continued to serve until he was honorably discharged as a SGT/E-5 on 14 September 1963 in order to accept an appointment as a commissioned officer in the U.S. Army Reserve.

5.  He was appointed as a second lieutenant of Infantry in the USAR on 15 September 1963.  He was federally recognized in the OKARNG on the same day.  He continued to serve until he resigned from the OKARNG on 3 August 1965 as a 2LT/0-1 and was returned to the control of the USAR Control Group.  

6.  On 4 August 1965 he was transferred to the USAR Control Group (REINFORCEMENT) and remained until he was honorably discharged on 28 November 1966.

7.  After a break in service, he reenlisted in the OKARNG on 1 February 1971 as a SGT/E-5.  He continued to serve through a series of continuous reenlistments until he was honorably discharged from the OKARNG on 1 May 1984 and was assigned to a troop program unit (TPU) in the USAR on.  He remained in a USAR TPU from 2 May 1984 to 26 September 1984.

8.  On 27 September 1984, he reenlisted in the OKARNG as a SSG/E-6.

9.  He was promoted to the pay grade of SFC/E-7 on 8 December 1986.

10.  On 4 January 1988, the OKARNG submitted a notification for eligibility for retired pay on the applicant at the age of 60 in the retired grade of SFC/E7.

11.  On 25 January 1988, the National Guard Bureau notified the applicant that
he had completed the required years of service to be eligible for retired pay upon applicant at age 60 (971008), commonly referred to as the “20 year letter”.
12.  On 21 February 1989, an Enlisted Qualitative Retention Board convened for Selection for Retention under the provisions of Army Regulation 135-205 and recommended his retention.

13.  On 27 February 1989, the Assistant Chief, of Staff of the OKARNG approved the recommendation of the Enlisted Qualitative Management Board.

14.  On 15 May 1990, the applicant’s detachment commander in the OKARNG submitted a request for involuntary reduction in rank on the applicant.  The detachment commander indicated that the applicant had been declared excess/overgraded due to the reorganization effective 1 June 1989.  The applicant was reduced from SFC/E7 to SGT/E5 on 1 June 1990.

15.  The applicant appeared before the Enlisted Qualitative Retention Board during the calendar year of 1994 and 1996 and was recommend as among the best qualified for retention.  The Adjutant General of the OKARNG approved the recommendations of these retention boards on 27 October 1994 and on 22 April 1996, respectively.

16.  On 30 August 1996, the applicant submitted his request for discharge under the provisions of National Guard Regulation 600-8, paragraph 8-27v for retirement.

17.  The applicant’s request was processed and approved by the appropriate authority on 23 October 1996 with an effective date of retirement for 26 September 1996.

18.  On 26 September 1996, the applicant was honorably discharged from the OKARNG and was transferred to the USAR Control Group (Retired) in the pay
grade of SGT/E-5 under the provisions of National Guard Regulation 600-200, paragraph 8-27v.  

19.  On 14 July 1997, a DD Form 108 (Application for Retired Pay Benefits) was submitted by the applicant to the Army Reserve Personnel Center in Saint Louis, Missouri.  Item 4 (Highest Grade Held) shows the entry “SFC E7 2LT 01”.

20.  There is no evidence in the available records to show that at the time the applicant was separating that he was informed that retiring in the grade of 
2LT/0-1 would result in his receiving a lesser monthly rate than that of an
SFC/E-7.

21.  Army Regulation 135-205 prescribes policy, responsibilities, and procedures for Special Duty Assignment (Proficiency Pay) (SDA(PP) for U.S. Army Reserve personnel, the Individual Ready Reserve Enlisted Personnel Management System, the Qualitative Retention Program and the Reserve Components Command Sergeant Major Program.  This regulation applies to all enlisted members of the Army National Guard (ARNG) and the USAR.

22.  Paragraph 4, of Army Regulation 135-205 governs the Qualitative Retention Program (QRP).  The QRP is designed to ensure only the best qualified soldiers are retained beyond 20 years of qualifying service, to provide for career incentive, to assure advancement to the high grades at peak years of effectiveness, to satisfy continuing requirement for senior NCOs and to provide the command with tools to control enlisted personnel and inventory and management career progressive.  The QRP is not designed to nor intended to be used in lieu of separation or removal procedures authorized by other regulations (that is, unsatisfactory performance, unsatisfactory participation, failure to meet weight standards, and so forth).

23.  National Guard Regulation 600-200 establishes standard, policies, and procedures of the management of Army National Guard (ARNG) enlisted soldiers in the functional areas of (1) accessions and retention, (2) civilian acquired skills, (3) initial active duty for training and voluntary action duty, (4) personnel management, (5) promotion, appointments, and reductions (6) extensions, bars to reenlistment, immediate reenlistment and extensions, and (7) discharges.  
Chapter 6, paragraph 44(k) provides for involuntary reductions.  It states that soldiers who lose positions due to unit reorganization, inactivation or full time support (FTS) utilization requirements, who cannot be properly utilized in their units, will be transferred immediately if possible to another unit so that they can be utilized properly.  If reassignment is not appropriate, they may be retained in current grade only up to one year before being involuntary reduced to fill a position, or transferred to the Inactive National Guard (ING) or Individual Ready Reserve (IRR).

24.  Paragraph 8-27(v) of the National Guard Regulation 600-200, provides for separation of personnel discharged and transferred to the USAR Control Group (Retired).  Soldiers with notification letters of eligibility for retired pay at age 60 (20 year letters) will be transferred to the USAR Control Group (Retired) unless they specifically request in writing to be discharged from both State and Reserve of the Army status.

25.  Title 10 United States Section 3914 governs 20 to 30 year retirement by a soldier of the Regular Army, the Army National Guard of the United States and the U.S. Army Reserve.  

26.  Sections 12731 through 12739 of Title 10, United States Code, authorize retired pay for Reserve Component military service.  Under this law, a Reserve soldier must complete a minimum of 20 qualifying years of service to be eligible for retired pay at age 60.  After 1 July 1949, a qualifying year is one in which a Reserve soldier earned 50 retirement points or more.  This law further requires that the last 8 years of qualifying service must be in a Reserve Component.

27.  Title 10, United States Code, provides that a reserve commissioned officer.
under section 12771, shall be placed on the retired list established by section 12774(a) of this title in the highest grade in which served satisfactorily, as determined by the Secretary concerned and in accordance with section 1370(d), in the armed force in which he is serving on the date of transfer.

28.  Title 10 United States Code, Chapter 369, provides requirements for retired grade.  Section 3963 provides for the highest grade held satisfactorily; Reserve enlisted members reduced in grade not as a result of the member’s misconduct.
It states that Reserve members 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.  This section applies to 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); and (2) was previously administratively reduced in rank not as a result of the member’s own misconduct, as determined by the Secretary of the Army.  

29.  Section 3991 of Title 10, United States Code, provides for the computation of retired pay by the use of the most favorable formula.  It states that if a person would otherwise be entitled to retired pay computed under more than one formula, then he is entitled to be paid under the applicable formula that is most favorable to him.

CONCLUSIONS:

1.  In providing that an individual be retired in the highest grade satisfactorily held, Congress clearly intended to provide the highest amount of retired pay.

2.  Evidence of record shows that the applicant served satisfactorily in the pay grade of SFC/E7 from 8 December 1986 to 1 June 1990 and in the pay grade of 2LT/)-1 from 15 September 1963 to 3 August 1965.

3.  Evidence of record shows that the applicant was declared excess/overgraded due to reorganization and was reduced from SFC/E7 to SGT/E-5.  However, he appeared before several Qualitative Retention Boards and was recommended among the best qualified for retention and was approved by the Adjutant General of the OKARNG.

4.  The determination that the highest grade satisfactorily held by the applicant was 2LT is unjust in that it has deprived him, and will continued to deprive him, of the increased pay which he wound have received if his retired pay had been computed in the pay grade of E-7.  Therefore, the applicant’s records should be corrected to show the highest grade held of 2LT on the Army of the United States Retired List with his retired pay computed at the pay grade of E-7.

5.  Accordingly the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected to show that the highest grade satisfactorily held by the individual concerned, under the provisions of Title 10, United States Code, section 1401, was 2LT, and that he was placed on the Army of the United States Retired List in such grade effective 26 September 1996 under the provisions of Title 10, United States Code, sections 12731-12739, with his retired pay computed at the pay grade
of E-7.

BOARD VOTE:  

SK_____  KAK_____  CLG____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____STANLEY KELLEY____
		        CHAIRPERSON

INDEX

CASE ID	AR1999014173	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000426	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19960927	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  306		
2.		
3.		
4.		
5.		
6.