PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           11 June 2002
	DOCKET NUMBER:   AR2002068810

	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. Fred N. Eichorn 		Chairperson	
	Mr. Roger W. Able		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 he be advanced to the rank and pay grade of staff sergeant/E-6 (SSG/E-6) on the Retired List.  

3.  The applicant states, in effect, that he served on active duty and in a Reserve status with the United States Army Reserve (USAR) and the Army National Guard (ARNG).  He claims that he was promoted to the rank and pay grade of SSG/E-6 in 1975, while serving in the Missouri ARNG and voluntarily accepted an administrative reduction to the rank and pay grade of sergeant/E-5 (SGT/E-5) in June 1985, in order to accept an active duty position in an Army Guard/Reserve (AGR) status.  He contends that since this reduction was not due to misconduct and he has now reached the 30 year service requirement for advancement on the Retired List, he would like to be advanced to the highest grade he held on the Retired List.  In support of his application, he submits a copy of his separation document (DD Form 214), his administrative reduction orders from SSG/E-6 to SGT/E-5, a letter of commendation, orders awarding him the Missouri National Guard Commendation Ribbon, and a copy of a leave and earnings statement (LES) confirming that he was paid as a SSG/E-6 for a period of active duty service in November 1975.

4.  The applicant’s military records show that on 31 March 1997, while serving on active duty in an AGR status, he was honorably release from active duty   (REFRAD).  At the time of his REFRAD, he had completed a total of 20 years and 26 days of active military service.  The DD Form 214 issued to the applicant upon his separation confirms that he was separated for the purpose of retirement, under the provisions of chapter 12, Army Regulation 635-200, and that he held the rank and pay grade of SGT/E-5 on the date of his REFRAD.

5.  The applicant’s official military personnel file (OMPF) confirms that he was promoted to the rank and pay grade of SSG/E-6 on 24 June 1971.  Orders Number 10-1, dated 16 June 1980, issued by Headquarters, 175th Military Police Battalion, Missouri ARNG, authorized the applicant’s voluntary administrative reduction from SSG/E-6 to SGT/E-5, in order to allow him to accept an active duty AGR position.

6.  Orders Number 020-002, dated 20 January 1997, issued by Headquarters, Missouri ARNG, Office of the Adjutant General, authorized the applicant’s REFRAD for the purpose of retirement on 31 March 1997, 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 SGT/E-5.

7.  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 6-35(d), in effect, at the time provides that a soldier may volunteer for reduction to any lower rank in order to obtain a benefit or for personal preference.

8.  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 in accordance with Title 10 of the United States Code, section 3963 (10 USC 3963). 

9.  10 USC 3963 (Highest grade held satisfactorily, Reserve enlisted members reduced in grade not as a result of the member's misconduct) contains the legal authority for placing a Reserve enlisted member of the Army or a member of the National Guard on full-time National Guard duty, who is retired under section 3914 this title after 30 September 1996, on the Retired List in the highest enlisted grade in which the member served on active duty satisfactorily. 

CONCLUSIONS:

1.  The Board notes the applicant’s contention that he should be advanced on the Retired List to the highest grade he held on active duty and finds this claim has merit.

2.  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 SSG/E-6 and satisfactorily served on active duty in that grade prior to being administratively reduced to SGT/E-5.

3.  In addition, the record verifies that the applicant’s reduction to SGT/E-5 was a voluntary administrative action and was not the result of any misconduct on his part.  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, SSG/E-6, effective 1 April 1997, the date he was placed on the Retired List. Further, it concludes 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:

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 SSG/E-6 and that he was placed on the Retired List in that rank and pay grade on 1 April 1997; and by providing him any back pay and allowances due as result of this correction.

BOARD VOTE:  

__FNE__  __RWA__  __RTD___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___Fred N. Eichorn___
		     CHAIRPERSON

INDEX

CASE ID	AR2002068810	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/06/11	
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.	129.0400	
2.		
3.		
4.		
5.		
6.