BOARD DATE: 21 February 2017 DOCKET NUMBER: AR20150014631 BOARD VOTE: ____x_____ ___x____ ____x____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 21 February 2017 DOCKET NUMBER: AR20150014631 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. amending U.S. Army Human Resources Command Orders P02-802157, dated 19 February 2008, to show he was placed on the Retired List in the rank/grade of staff sergeant/E-6 (date of rank 3 February 1984) and b. paying him any additional retired pay due as a result of this correction. _____________x____________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. BOARD DATE: 21 February 2017 DOCKET NUMBER: AR20150014631 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests correction of his records to show he was placed on the Retired List in the rank/grade of staff sergeant (SSG)/E-6, the highest grade he satisfactorily held, instead of sergeant (SGT)/E-5. 2. The applicant states he is requesting advancement on the retired list to the highest grade he held satisfactorily while on active duty under the provisions of Title 10, U.S. Code, Section 3964. He states he was retired on 17 February 2008 in pay grade E-5 even though he had previously held pay grade E-6. 3. While in the New Hampshire Army National Guard (NHARNG) he accepted a voluntary administrative reduction from pay grade E-6 to E-5 to allow another Soldier to achieve a promotion to pay grade E-6. He was told that his reduction would not negatively impact his eventual retirement as an E-6. He served honorably in the Republic of Vietnam (RVN), in Operation Desert Storm, and throughout his entire military career. 4. The applicant provides: * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), effective 12 June 1970 * Certificate of Promotion to SSG/E-6, effective 3 February 1984 * NGB Form 55a (Honorable Discharge), dated 12 September 1984 * Certificate of Award, 744th Transportation Company, dated 10 December 1988 * DD Form 214 (Certificate of Release or Discharge from Active Duty), ending on 15 August 1991 * DD Form 108 (Application for Retired Pay Benefits), dated 1 December 2007 * DD Form 2656 (Data for Payment of Retired Personnel),dated 1 December 2007 COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests correction of the applicant’s military record by showing his retired rank/pay grade as SSG/E-6. 2. Counsel states the applicant served in both the Vermont Army National Guard (VTARNG) and the NHARNG. He was promoted to SSG/E-6 on 3 February 1984 in the VTARNG prior to transferring to the NHARNG. His NHARNG chain of command asked him to voluntarily take an SGT/E-5 position to afford another Soldier an opportunity to be promoted to SSG/E6. The applicant voluntarily agreed to do so with the understanding that he would still be able to retire as an SSG/E-6. A signed DD Form 2656, dated 1 December 2007, submitted with his application shows his rank/pay grade as SSG/E6. A DD Form 108, dated 1 December 2007, also shows SSG/E-6 was the highest rank he held. 3. Counsel provides no additional documentation. CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant was born on 17 February 1948. 3. In early April 1965, the applicant enlisted in the NHARNG. He was ordered to active duty for training (ACDUTRA) effective 31 May 1965. He completed his initial training and was released to the NHARNG on 19 November 1965. He had attained the rank of private, pay grade E-2. 4. On 15 June 1966, the applicant enlisted in the Regular Army for a period of 4 years. He served in the Republic of Vietnam (RVN) from July 1967 to July 1968. On 5 March 1968, while in the RVN, he was promoted to SGT/E-5. 5. On 12 June 1970, the applicant was released from active duty and transferred to the U.S. Army Reserve Control Group (Reinforcement). He had completed his required active duty service. 6. On 1 April 1978, the applicant enlisted in the VTARNG. On 3 February 1984, he was promoted to SSG/E-6. 7. On 12 September 1984, the applicant was separated from the VTARNG and transferred to the NHARNG for duty with the 744th Transportation Company in the rank of SSG/E-6. 8. The applicant’s Noncommissioned Officer Evaluation Report (NCOER) for the rating period ending October 1989 shows he served satisfactorily in the rank/grade of SSG/E-6. 9. Order 18-1, 744th Transportation Company, dated 3 July 1990, announced the applicant’s reduction in rank from SSG/E-6 to SGT/E-5, effective 13 July 1990, in accordance with National Guard Regulation 600-200 (Enlisted Personnel Management), paragraph 6-44f (voluntary administrative reduction). 10. On 17 November 1990, the applicant was ordered to active duty as a member of his NHARNG unit in support of Operation Desert Shield/Desert Storm. He was honorably released from active duty on 15 June 1991 and transferred back to the NHARNG. 11. On 21 June 1991, the NHARNG issued the applicant a Notification of Eligibility for Retired Pay at Age 60 (20-year letter). This letter notified him that he had completed the required years of service and would be eligible for retired pay upon application at age 60. The letter identified the applicant as a SGT. 12. Orders 167-002, NHARNG, dated 26 August 1991, announced the applicant’s discharge from the NHARNG and transfer to the Retired Reserve effective 12 September 1991, in the rank of SGT. 13. The applicant was discharged from the NHARNG on 12 September 1991. His NGB Form 22 (Report of Separation and Record of Service) shows he completed 20 years, 5 months, and 21 days of service. Additionally, this form shows in: * item 5a (Rank) – SGT * item 5b (Pay Grade) – E-5 * item 6 (Date of Rank) – 3 June 1976 14. DD Forms 2656 and 108, both dated 1 December 2008, show the applicant requested retired pay based the rank of SSG/E-6. 15. Orders P02-802157, U.S. Army Human Resources Command, dated 19 February 2008, announced the applicant’s placement on the Retired List in the rank of SGT/E-5, effective 17 February 2008 (his 60th birthday) under the provisions of Title 10, U.S. Code, section 12731. REFERENCES: 1. Title 10, U.S. Code, section 12731, states a person is entitled to retired pay upon application if the person is at least 60 years of age and has performed at least 20 years of service as computed under section 12732. 2. Department of Defense Financial Management Regulation, volume 7B (Military Pay Policy and Procedures – Retired Pay), chapter 1 (Initial Entitlements-Retirements), section 0105 (Rank and Pay Grade), paragraph 010501A (General Determinations), states that unless entitled to a higher grade under some other provision of law, those Regular and Reserve members who retire other than for disability will retire in the Regular or Reserve grade they hold on the date of retirement. Paragraph 10503 (Satisfactory Service) provides that the determination as to what constitutes satisfactory service for the purpose of retirement in the highest grade is within the discretionary power of the Secretary of the Military Department concerned. 3. Army Regulation 135-180 (ARNG and Army Reserve – Qualifying Service for Retired Pay Non-Regular Service) states that a person granted retired pay will receive such pay in the highest grade (temporary or permanent) satisfactorily held by him or her during his or her entire period of service. Service in the highest grade will not be deemed satisfactory if it is determined that any of the following factors exist: a. revision to a lower grade was expressly for prejudice or cause, due to misconduct, or punishment pursuant to Article15, Uniform Code of Military Justice, or court-martial; or b. there is information in the Soldier's service record to indicate clearly that the highest grade was not served satisfactorily. 4. Army Regulation 135-180, paragraph 1-4, states that retired pay is pay granted to Soldiers and former Reserve Component Soldiers under Title 10, U.S. Code, section 1331, after completion of 20 or more years of qualifying service and upon attaining age 60. This pay is based on the highest grade satisfactorily held at any time during an individual's entire period of service, other than in an inactive section of a Reserve Component. DISCUSSION: 1. The applicant contends that his records should be corrected to show he was placed on the Retired List in the rank/grade of SSG/E-6, the highest grade he satisfactorily held, instead of SGT/E-5. 2. By law, a person granted retired pay will receive such pay in the highest grade satisfactorily held by him or her during his or her entire period of service. Service in the highest grade will not be deemed satisfactory if it is determined that the revision to a lower grade was due to misconduct or court-martial or if there is information in the Soldier's service record to indicate clearly that the highest grade was not served satisfactorily. 3. In the applicant's case, the available evidence shows he was promoted to SSG/E-6 on 3 February 1984 and he held that grade until 13 July 1990, when he was voluntarily reduced to SGT/E-5 for administrative reasons. There is no evidence of record showing he was reduced for misconduct or any other negative/derogatory reason. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150014631 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150014631 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2