PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           24 January 2002
	DOCKET NUMBER:   AR2001058741

	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. William Blakely		Analyst	

  The following members, a quorum, were present:

	Mr. George D. Paxson		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Richard T. Dunbar		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 reduction from sergeant first class/E-7 (SFC/E-7) to staff sergeant/E-6 (SSG/E-6) was improper and should be revoked; that his retired rank and pay grade be changed to the highest rank and pay grade he held on active duty; and that he receive any back pay and allowances due as a result. 

3.  The applicant states, in effect, that he was administratively reduced from master sergeant/E-8 (MSG/E-8) to SFC/E-7 in order to accept a recruiting position and that based on his inability to complete the recruiter course, he was further administratively reduced from SFC/E-7 to staff sergeant /E-6 (SSG/E-6) in order to accept an active duty position as a training noncommissioned officer.  He claims that subsequent to failing the course, he spoke to his supervisor and requested a transfer, but this transfer was denied.  After expressing his concern that he needed 2 more years of active duty service to qualify for retirement, he was told by the command administrative officer that he would lose his chance for retirement if he did not accept a reduction to SSG/E-6 in order to accept an active duty position as a training NCO.  Based on his fear of losing his retirement, he accepted this administrative reduction and he was ultimately released from active duty (REFRAD) and placed on the Retired List as a SSG/E-6.  He now claims that this last administrative reduction was improper and he requests that it be reviewed to determine if it was accomplished in accordance with the applicable regulations.  In support of his application, he provides the following documents:  retirement order; voluntary reduction orders from MSG/E-8 to SFC/E-7 and from SFC/E-7 to SSG/E-6; active duty order placing him in an authorized Active Guard/Reserve (AGR) SSG/E-6 position; and his final separation document (DD Form 214).

4.  The applicant’s military record shows that he was a member of the Army National Guard (ARNG) of Puerto Rico and that he served on active duty in an Active Guard/Reserve (AGR) status from 4 August 1981 through 31 March 1999, at which time he was REFRAD for the purpose of retirement.  At the time of his separation, he had completed a total of 20 years, 7 months, and 6 days of active military service and he held the rank and pay grade of SSG/E-6.  

5.  The applicant’s Personnel Qualification Record (DA Form 2-1) confirms in item 18 (promotions and reductions) that he was promoted to the rank of 
MSG/E-8 on 18 August 1987, administratively reduced to the rank of SFC.E-7 on 1 April 1996 and to SSG/E-6 on 5 March 1977.  

6.  Orders Number 52-22, dated 18 March 1996, issued by Headquarters, ARNG of Puerto Rico, authorized the applicant’s voluntary administrative reduction from MSG/E-8 to SFC/E-7, in order to allow him to accept an AGR position in MOS 13E40, effective 1 April 1996.  

7.  Orders Number 40-97, dated 5 March 1997, issued by Headquarters, ARNG of Puerto Rico, authorized the applicant’s voluntary administrative reduction from SFC/E-7 to SSG/E-6, in order to allow him to accept an AGR position in MOS 13E30, effective 5 March 1997.

8.  Orders Number 38-51, dated 3 March 1999, issued by Headquarters, Puerto Rico State Area Command, ARNG, San Juan, Puerto Rico, authorized the applicant’s REFRAD for the purpose of retirement on 31 March 1999, and his placement on the Retired List the following day.  It also authorized his placement on the Retired List in the retired rank and pay grade of SSG/E-6, and it confirmed that at the time of his REFRAD, he had completed a total of 20 years, 7 months, and 6 days of active military service.  

9.  The DD Form 214 issued to the applicant upon his REFRAD on 31 March 1999, confirms that he was separated for the purpose of retirement under the provisions of chapter 12, Army Regulation 635-200.  It also verifies that he had completed 17 years, 7 months, and 28 days of net active service during the period of service covered by this separation document and that he held the rank and pay grade of SSG/E-6 on the date of his REFRAD. 

10.  National Guard Regulation (NGR) 600-200, establishes the standards, policies and procedures for the management of ARNG enlisted soldiers and specifically the policy for enlisted promotion, appointment, and reduction.  Paragraph 6-44(f) of that regulation provides that a soldier may volunteer for reduction to any lower rank in order to obtain a benefit or for personal preference.

11.  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 12-3b(1) 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 reduction was improper and it finds this claim lacks merit.  The evidence of records confirms that the applicant’s reductions to SFC/E-7 and to SSG/E-6 were both voluntary administrative actions that were accomplished in accordance with the applicable regulation. 

2.  However, by regulation, ARNG soldiers who retire from active duty are entitled to be placed on the Retired List in the highest grade in which they satisfactorily served on active duty.  In this case, the evidence of record confirms the applicant was promoted to MSG/E-8 and satisfactorily served on active duty in that grade for more than 8 years prior to being administratively reduced to SFC/E-7.  

3.  In addition, the record verifies that the applicant’s reductions to SFC/E-7 and SSG/E-6 were both voluntary administrative actions and were not the result of any misconduct on the part of the applicant.  Therefore, the Board concludes that the applicant should have been placed on the Retired List in the highest grade in which he satisfactorily served on active duty, MSG/E-8, effective 1 April 1999, and that it would be appropriate to correct this error at this time and to provide him any back pay and allowances due as a result. 

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.

5.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by showing that the authorized retired grade of the individual concerned was MSG/E-8 and that he was placed on the Retired List in that rank and pay grade on 1 April 1999; and by providing him any back pay and allowances due as result of this correction.  

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__GDP__   _ _WTM__  __RTD     GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		    __George D. Paxson__
		        CHAIRPERSON

INDEX

CASE ID	AR2001058741	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/01/24	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	129.04	
2.		
3.		
4.		
5.		
6.