PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:           10 June 2003                  
	DOCKET NUMBER    AR2003084644

	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. Samuel A. Crumpler  		Chairperson	
	Ms. Shirley L. Powell		Member	
	Mr. John T. Meixell		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 should have been retired in the highest grade he satisfactorily held while serving on active duty.  He claims that after serving on active duty for over six years, he was honorably released from active duty (REFRAD) on 11 September 1984.  He states that on that date, he held the rank and pay grade of SSG/E-6, which he had initially attained on 1 July 1976.  The applicant claims that on 11 January 1985, he voluntarily accepted an administrative reduction to the rank and pay grade of sergeant/E-5, in order to accept an Active Guard Reserve (AGR) position on active duty.  In support of his application, he provides a copy of his promotion orders to SSG/E-6, and his separation documents (DD Form 214) from 1984 and 1997.  

4.  The applicant’s military records show that on 31 July 1997, while serving on active duty in an AGR status, he was honorably REFRAD.  At the time of his separation, he had completed a total of 20 years and 16 days of active military service.  

5.  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.  This document also verifies that he held the rank and pay grade of SGT/E-5 on the date of his REFRAD.  

6.  Special Orders Number 126, dated 23 June 1976, issued by Headquarters, 
5th Infantry Division (Mechanized) and Fort Polk, Fort Polk, Louisiana, confirms that the applicant was promoted to the rank and pay grade of SSG/E-6 on 1 July 1976.  

7.  The applicant’s Military Personnel Records Jacket (MPRJ) contains DD Form 214, dated 11 September 1984, documents the applicant’s period of active duty service between 12 July 1978 and 11 September 1984.  This document confirms that when he was honorably REFRAD on 11 September 1984, he held the rank and pay grade of SSG/E-6, and that he had satisfactorily served in that rank and pay grade for the entire 6 year and 2 month period of active duty service documented by this separation document. 

9.  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, Reserve 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). 

10.  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, Reserve 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 from 12 July 1978 to 11 September 1984.  

3.  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, which is SSG/E-6, effective 1 August 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.  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 August 1997; and by providing him any back pay and allowances due as result of this correction.

BOARD VOTE:  

__JM__  __SLP___  __SAC__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________GRANT FORMAL HEARING

________  ________  _______  DENY APPLICATION

		Samuel A. Crumpler 
		 CHAIRPERSON

INDEX

CASE ID	AR2003084644	
SUFFIX		
RECON		
DATE BOARDED		
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	AR 	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1. 306	129.0400	
2.		
3.		
4.		
5.		
6.