PROCEEDINGS

	IN THE CASE OF:     

	BOARD DATE:           8 November 2001
	DOCKET NUMBER:   AR2001058720

	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. Joseph A. Adriance		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Ms. Karen Y. Fletcher		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 his retired rank and pay grade be changed from sergeant first class/E-7 (SFC/E-7) to master sergeant/E-8 
(MSG/E-8), that his rank and pay grade on the Retired List be corrected to MSG/E-8, and that he receive all back pay and allowances due as a result.

3.  The applicant states, in effect, the DD Form 214 issued to him on the date of his REFRAD for the purpose of retirement, 29 February 2000, incorrectly shows his retired grade as SFC/E-7.  He claims that under the existing regulatory policy he should have been retired in the highest rank he held and in which he satisfactorily served on active duty, MSG/E-8, and from which he was administratively reduced not as a result of his own misconduct.  In support of his application, he provides his retirement order, his voluntary reduction order from MSG/E-8 to SFC/E-7, his MSG/E-8 promotion order, and an order assigning him to an authorized MSG/E-8 position. 

4.  The applicant’s military records show that he was a member of the Army National Guard (ARNG) of California who continuously served on active duty in an Active Guard/Reserve (AGR) status from 1 October 1980 to 29 February 2000.

5.  On 26 September 1984, the applicant was ordered to full time duty (State) in an AGR status to perform recruiting duties.  On 19 February 1987, he was promoted to the rank and pay grade of MSG/E-8 in military occupational specialty (MOS) 00E50 and on 1 February 1992, he was administratively reduced from MSG/E-8 to SFC/E-7 voluntarily, in order to accept an AGR position in MOS 00E40.  

6.  Orders Number 293-230, dated 20 October 1999, by issued by the State of California, Office of the Adjutant General, Sacramento, California, directed the applicant’s honorable discharge from the Army National Guard (ARNG), effective 29 February 2000, and his assignment to the Retired Reserve.

7.  Orders Number 301-242, dated 28 October 1999, issued by the State of California, Office of the Adjutant General, Sacramento, California, authorized the applicant’s REFRAD on 29 February 2000 and his placement on the Retired List, effective 1 March 2000, in the retired grade of rank of SFC/E-7.

8.  On 29 February 2000, the applicant was REFRAD under the provisions of chapter 12, Army Regulation 635-200 for the purpose of retirement.  The 
DD Form 214 issued to him at this time indicated that he held the rank and pay grade of SFC.E-7 and that he had completed a total of 22 years and 28 days of active military service.  

9.  On 1 June 2001, the applicant submitted a request to the Office of the Adjutant General, California ARNG, asking that his retirement orders be amended to change his retirement grade of rank from SFC/E-7 to MSG/E-8 in accordance with the applicable regulation.  This request was approved, and Orders Number 164-255, dated 13 June 2001, were published amending Orders Number 301-242 to change the applicant’s authorized retired grade of rank from SFC/E-7 to MAG/E-8.  

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 12 sets policies and procedures for voluntary retirement because of length of service.  Paragraph 12-3 contains the general provisions of law governing retirement and it states in pertinent part, that ARNG soldiers serving on active duty at the time of their retirement, in a grade lower than their highest active duty enlisted grade, who were administratively reduced, not as a result of their own misconduct, will retire in the highest grade in which they satisfactorily served on active duty. 

CONCLUSIONS:

1.  The Board notes the applicant’s contention that his retired grade should have been MSG/E-8 instead of SFC/E-7 and it finds this claim has merit.  By regulation, ARNG soldiers who retire from active duty are entitled to retire in the highest grade in which they satisfactorily served on active duty.  

2.  The evidence of record confirms the applicant was promoted to MSG/E-8 on 19 February 1987 and that he satisfactorily served on active duty in that grade until 1 February 1992, at which time he was administratively reduced to 
SFC/E-7, not as a result of his own misconduct. 

3.  In addition, the record clearly shows that ARNG officials recognized that the retired grade of rank of SFC/E-7 originally assigned the applicant was in error. This is evidenced by their action to correct this error by publishing an amendment to the original retirement order.  This amendment changed the applicant’s retired grade of rank to MSG/E-8.  Therefore, the Board concludes that the requested relief is warranted in this case.

4.  Although the Board has no authority to correct State ARNG records, governed under Title 32, the Board is of the opinion that so far as the Department of the Army is concerned, it would be in the best interest of justice to correct the ARNG records of the individual concerned as recommended below. 

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by showing that the individual concerned held the rank and pay grade of 
MSG/E-8 on the date of his REFRAD for the purpose of retirement and discharge from the ARNG; that he was placed on the Retired List as a MSG/E-8; by issuing him a corrected discharge order and separation document that reflects this change; and by providing him all back pay and allowances due as a result of this correction to his retired grade. 

BOARD VOTE:  

__FNE __  __BJE__  __KYF __  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

	___Fred N. Eichorn  __
		    CHAIRPERSON

INDEX

CASE ID	AR2001058720	
SUFFIX		
RECON		
DATE BOARDED	2001/11/08	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	2000/02/29	
DISCHARGE AUTHORITY	AR 635-200 C12	
DISCHARGE REASON	Retirement 	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  306	129.0400	
2.  319	139.0900	
3.		
4.		
5.		
6.