PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            24 April 2003     
	DOCKET NUMBER:   AR2003083773

	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. Raymond V. O’Connor Jr.		Chairperson	
	Ms. Terry L. Placek		Member	
	Mr. Robert Duecaster		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 first sergeant sergeant/E-8 (1SG/E-8).   

3.  The applicant states, in effect that the highest rank and pay grade in which he served satisfactorily was 1SG/E-8.  He further states that he was administratively reduced to SFC/E-7 in order to accept a position, and given that he served on active duty in the pay grade of E-8, he should have been retired in that pay grade.  

4.  The applicant’s military records show that he was released from active duty (REFRAD), for the purpose of voluntary early retirement under the provisions of chapter 12, Army Regulation 635-200, on 30 September 1997.  At the time of his REFRAD, he had completed total of 16 years, 11 months, and 10 days of active military service and 29 years, 8 months, and 19 days of military service for basic pay purposes, and he held the rank and pay grade of SFC/E-7.

5.  The applicant’s Military Personnel Records Jacket (MPRJ) contains orders showing that on 15 August 1982, while serving as a member of Kansas Army National Guard (ARNG), the applicant was promoted to the rank and pay grade of 1SG/E-8 as a unit member, and awarded the special qualification identifier (SQI) of "M”, which identified him as a qualified 1SG.  

6.  The applicant’s MPRJ also contains a copy of Orders Number 241-11, dated 29 November 1983, issued by the Kansas ARNG.  These orders directed the applicant’s administrative reduction to SFC/E-7 for the purpose of accepting an Active Guard Reserve (AGR) position.  The record gives no indication that the applicant was ever reduced or reassigned due to his own misconduct. 

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 12 contains the policy and procedures pertaining to retirement.  Paragraph 12-3 contains the general provisions of laws governing retirement.  It states, in pertinent part, that retirement normally will be in the regular or reserve grade the soldier holds on the date of retirement.  However, as an exception, ARNG soldiers serving on active duty at the time of retirement, in a grade lower than their highest active duty enlisted grade, who were administratively reduced in grade not as a result of their own misconduct, will retire at the highest enlisted grade in which they served satisfactorily on active duty.

8.  Title 10 of the United States Code, section 3963, as enacted by Public Law
104-201 on 23 September 1996, provides the legal authority for retirement in the highest grade held satisfactorily by Reserve enlisted members reduced in grade not as a result of the member's misconduct.  It states, in pertinent part, that a Reserve enlisted member of the Army 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 applies to a Reserve enlisted member who 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 duty); and was previously administratively reduced in grade not as a result of the member's own misconduct, as determined by the Secretary of the Army. 

CONCLUSIONS:

1.  The Board notes the applicant’s contention that he should have been retired in the highest grade he held while serving on active duty and it finds this claim has merit.  

2.  By law and regulation, ARNG soldiers serving on active duty at the time of retirement, in a grade lower than their highest active duty enlisted grade, who were administratively reduced in grade not as a result of their own misconduct, will retire at the highest enlisted grade in which they served satisfactorily.

3.  The evidence of record confirms that the applicant satisfactorily served on active duty in the rank and pay grade of 1SG/E-8 and that he was administratively reduced, not due to his own misconduct, in order to accept a change of position.  Therefore, the Board concludes it would be appropriate to correct his record to show that he was placed on the Retired List in the rank and pay grade of 1SG/E-8, and to provide him any back retired pay due as a result.  

4.  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 individual concerned was authorized a retired grade of first sergeant/E-8; that he was placed on the Retired List in that rank and pay grade on 1 October 1997; and by providing him all back retired pay due as a result. 

BOARD VOTE:  

___tlp___  __rvo ___  __rld____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_Raymond V. O’Connor Jr._
		        CHAIRPERSON

INDEX

CASE ID	AR2003083773	
SUFFIX		
RECON		
DATE BOARDED	2003/04/24	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	1997/09/30	
DISCHARGE AUTHORITY	AR 635-200 C12	
DISCHARGE REASON	Voluntary Early Retirement 	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  306	129.0400	
2.		
3.		
4.		
5.		
6.