BOARD DATE: 19 September 2017 DOCKET NUMBER: AR20160001448 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: 19 September 2017 DOCKET NUMBER: AR20160001448 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 Army Human Resources Command Orders P02-940786, dated 2 February 2011, to show he was placed on the Retired List in the rank/grade of SSG/E-6, on 13 November 2010, upon reaching age 60; 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: 19 September 2017 DOCKET NUMBER: AR20160001448 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, in effect, correction of his record to show he was retired in the rank/grade of staff sergeant (SSG)/E-6 instead of sergeant (SGT)/E-5. 2. The applicant states he was promoted to SSG/E-6 on 25 December 1986 and subsequently took a voluntary reduction in rank on 15 December 1994. He completed 7 years, 11 months, and 20 days of service in the rank/grade of SSG/E-6, and he should be able to receive retired pay accordingly. 3. The applicant provides: * NGB Form 23C (Army National Guard (ARNG) Retirement Points History Statement) * Promotion Order * Reduction Order * Active Duty (AD) Orders * Emergency Service Ribbon Certificate * Active Military Service Order * DA Form 2166-7 (Noncommissioned Officer (NCO) Evaluation Report) * Discharge Order * Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter) * NGB Form 22 (Report of Separation and Record of Service) * Revocation Order 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 in November 1950. After having prior AD and Reserve Component service, the applicant enlisted in the North Dakota Army National Guard (NDARNG) on 12 January 1978. He held military occupational specialties 62E (Heavy Construction Equipment Operator) and 88M (Motor Transport Operator). 3. Office of The Adjutant General, State of North Dakota, Orders Number 194-5, dated 24 December 1986, announced the applicant’s promotion from SGT/E-5 to SSG/E-6, effective on 25 December 1986. 4. Headquarters, 142nd Engineer Combat Battalion (Heavy), Orders 43-9, dated 6 September 1994, announced the applicant’s reduction from the rank/grade of SSG/E-6 to SGT/E-5, effective 9 September 1994. It shows the reason for the reduction was “Administrative (Individual Request).” 5. Office of the Adjutant General, State of North Dakota, Orders Number 036-424, dated 20 February 1996, directed the applicant’s discharge from the NDARNG and assigned him to the U.S. Army Retired Reserve, effective 22 February 1996. 6. On 2 February 2011, the Army Human Resources Command (HRC), St. Louis, MO, published Orders Number P02-940786 placing the applicant on the retired list in the rank of SGT/E-5, effective 13 November 2010, (his 60th birthday). 7. An NGB Form 23 prepared on 15 October 2015, shows he served in the NDARNG from 20 January 1971 to 22 February 1996. It also shows his highest grade held was SSG/E-6. REFERENCES: 1. 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 Article 15, 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. 2. 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. By law, a person granted retired pay will receive such pay in the highest grade satisfactorily held during his or her entire period of service. Service in the highest grade will not be deemed satisfactory if it is determined 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 the highest grade held was not satisfactorily. 2. In the applicant's case, the evidence of record shows he was promoted to the rank/grade of SSG/E-6 and successfully held that grade until he administratively accepted a reduction to the rank of SGT/E5 at his request. There is no information in the applicant's service record to indicate he failed to serve satisfactorily in the rank of SSG/E-6. Further, nothing is in his record showing he was reduced in rank for misconduct or for any other negative/derogatory reason. 3. An NGB Form 23C shows the applicant’s highest rank held was SSG/E-6 vice SGT/E-5. However, it appears no action was ever taken to ensure he would be placed on the Retired List in the rank/grade of SSG/E-6 and receive retired pay in this grade. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150008656 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001448 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2