PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:  6 February 2001
	DOCKET NUMBER:  AR2000043730

	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.  

	Mr. Carl W. S. Chun		Director	
	Mr. Paul A. Petty		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Thomas Lanyi		Member	
	Mr. Walter T. Morrison		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, that he be retired at the highest grade, pay grade E-7, in which he served on active duty satisfactorily.

3.  The applicant states, in effect, that he retired from the Active Guard Reserve (AGR) with 20 years active Federal service on 30 April 1999.  He was retired in the pay grade and rank of E-6, Staff Sergeant (SSG).  He had been promoted to the pay grade and rank of E-7, Sergeant First Class (SFC), on 29 October 1987, while in the active Reserves in a Troop Program Unit (TPU).  He served as a SFC for almost a year including one period of active duty, Annual Training (AT), from 13-29 April 1988.  On 29 October 1988, he requested voluntary administrative reduction to SSG to accept a SSG AGR position.  On 30 April 1999, he retired from active duty as a SSG, but he should have been retired at his highest pay grade and rank, E-7, SFC.  He applied to this Board on 19 July 1999 for correction of records on this issue.  He stated that he had tried to get this issue resolved with his AGR career manager and the Army Reserve Personnel Command (AR-PERSCOM) prior to retirement but without success.

4.  The applicant’s military records show that on the date he was promoted to SFC, 29 October 1987, he had 9 years, 7 months, and 18 days prior active duty and 9 years, 11 months, and 13 days Reserve duty.  He served as a SFC in the active Reserves in a TPU from 29 October 1987 to 9 October 1988.  During this time, the applicant served a 17 day period of active duty at Annual Training, 
13-29 April 1988, according to orders 082-091, issued by Headquarters, 
88th United States Army Reserve Command, dated 5 February 1988 and verified by Army pay records.

5.  On 9 October 1988, the applicant was administratively reduced to SSG at his request to accept an AGR position as a SSG supply sergeant.  Accordingly, he was ordered to active duty in the AGR program on 4 December 1988.  He served in that position until 30 April 1999 when he retired with a total of 20 years and 
15 days active Federal service.  He was retired at the pay grade and rank of E-6, SSG.

6.  The applicant’s Noncommissioned Officer Evaluation Reports and Academic Reports during the time that he was a SFC and up to his retirement show ratings of excellent to successful.  There is no derogatory information, negative personnel actions, or UCMJ actions in his record.

7.  Title 10, USC, section 3963, states that a Reserve enlisted member of the Army who is retired after 20 years active Federal service shall be retired in the highest enlisted grade in which the member served on active duty satisfactorily.  This applies to a Reserve enlisted member who, at the time of retirement, is: 
a) serving on active duty in a grade lower than the highest enlisted grade held by the member while on active duty; and, b) was previously administratively reduced in grade not as a result of the member's own misconduct.

8.  The term “active duty”, according to Title 10, USC, section 101 (Definitions), means full-time duty in the active military service of the United States and includes Reserve annual training duty (AT).

9.  The term “satisfactory service” is defined as service absent of any negative personnel or UCMJ action.  The length of time of satisfactory service for enlisted soldiers is not specified in law or regulation when there are no negative personnel or UCMJ actions.

10.  On 13 March 2000, the Army Grade Determination Board (AGDB) reviewed the applicant’s file and approved the applicant’s retirement at the pay grade of 
E-7.  This was done on the assumption that the applicant had served on active duty the entire time that he was an E-7.  Following this decision, AR-PERSCOM, Retirement and Annuities Branch, notified the AGDB that the applicant had not served that period of time on active duty, but in an Reserve TPU.  No information was given on the applicant’s active duty period at AT.  The AGDB reconsidered the case on 22 June 2000, and denied retirement at the pay grade of E-7 since the AGDB was not aware of any active duty in the pay grade of E-7 as required by law.

CONCLUSIONS:

1.  The AGDB denied restoration of the applicant’s E-7 pay grade and SFC rank not knowing that the applicant had served satisfactorily on active duty, AT, while he was a SFC.

2.  The applicant did serve on active duty, 17 days at AT, in the pay grade and rank of E-7, SFC.  There is no regulatory requirement or provision of law specifying a required length of active duty to satisfy this requirement for an enlisted member.

3. The applicant served satisfactorily as a SFC.  There is no evidence of derogatory information, negative personnel actions, UCMJ actions, or negative evaluation ratings or remarks during the time that the applicant served as a SFC or otherwise in his record.

4.  The applicant did serve satisfactorily on active duty, AT, in the higher grade of E-7 (SFC) and should therefore be retired at that pay grade and rank.  He does meet the specifications of Title 10, USC, section 3963, for retirement at his highest enlisted grade, pay grade E-7.

5.  In view of the foregoing, 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 for the individual by:

	a.  showing that he was retired in the pay grade and rank of E-7, SFC; and

	b.  providing him such resulting pay and benefits as authorized.

BOARD VOTE:  

__ro___  __tl___  ___wm_____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____Raymond V. O’Connor, Jr.____
		        CHAIRPERSON

INDEX

CASE ID	AR2000043730	
SUFFIX		
RECON		
DATE BOARDED	20010106	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  131.09	Advancement in Grade	
2.		
3.		
4.		
5.		
6.