SAMR-RB  21 July 2020 





MEMORANDUM FOR Case Management Division, US Army Review Boards Agency, 251 18th Street South, Suite 385, Arlington, VA 22202-3531 SUBJECT:  Army Board for Correction of Military Records Record of Proceedings for ., AR20180002708 


1.Reference the attached Army Board for Correction of Military Records Record ofProceedings, dated 1 August 2019, in which the Board members recommended denialof the applicant’s request.

2.I have reviewed the findings, conclusions, and Board member recommendations.  Ifind there is sufficient evidence to grant relief.  Therefore, under the authority of Title 10,United States Code, section 1552, I direct that all Department of the Army Records ofthe individual concerned be corrected by amending Headquarters, 101ST AirborneDivision and Fort Campbell Orders 072-0604, dated 12 March 2008 to reflect in theentry for Retired grade of rank: “MSG” vice “SSG” and paying the applicant anyadditional retired pay due him as a result of this correction.

3.Request necessary administrative action be taken to effect the correction of recordsas indicated no later than 18 November 2020.  Further, request that the individualconcerned and counsel, if any, as well as any Members of Congress who have showninterest be advised of the correction and that the Army Board for Correction of MilitaryRecords be furnished a copy of the correspondence.

BY ORDER OF THE SECRETARY OF THE ARMY: 

Encl  X


CF: (  ) OMPF 











ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF:   BOARD DATE:  1 August 2019 DOCKET NUMBER:  AR20180002708 


APPLICANT REQUESTS:  to be retired at his highest grade of Master Sergeant  (MSG)/ E-8 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

.DD Form 149 (Application for Correction of Military Record)

.DD Form 214 (Certificate of Release or Discharge from Active Duty)

.Self Authored Congressional letter

.Order #05-006-00001 (Promotion to Master Sergeant)

.DA Form 2166-8 (Non Commissioned Officer Evaluation Report)

.Congressional letters to the Chief of Army Legislative Liaison

.Congressional Liaison and Inquiries response letters



FACTS: 

1.The applicant did not file within the three year time frame provided in Title 10, UnitedStates Code (USC), section 1552 (b); however, the Army Board for Correction ofMilitary Records conducted a substantive review of this case and determined it is in theinterest of justice to excuse the applicant's failure to timely file.

2.The applicant states that:

.he enlisted in the Army on 18 February 1981 and served on active duty until he


was separated and placed in the Army Reserve as a contingent of hisacceptance of the Special Separation Benefit (SSB) entitlement on 1 April 1991
.in 2000, he was placed on active duty orders for 5 years at the rank of MasterSergeant

.in 2006, he enlisted in the Active Army at the rank of Staff Sergeant (SSG) afterbeing advised that there were no positions at the rank of Sergeant First Class orMSG

.after arriving at Fort Campbell, he discovered that there were positions at boththe SFC and MSG rank; however, neither were offered to him at the time of hisenlistment


.since he returned to active duty, he was required to repay the entitlementspreviously received under the SSB program prior to receiving Veteran’sAdministration Disability benefits in April of 2008 when he was on the TemporaryDisability Retirement List (TDRL)

.on 6 May 2010, he was permanently retired

.according to his records, he has a total of 19 years and 11 months of activeservice, and 29 years and 3 months of total military service



3.The applicant provides:

.DD Form 214 dated 1 August 1992, 24 April 2004, 15 August 2006 and27 April 2008 reflective of 15 years, 9 months and 28 days of active federalservice

.Order #05-006-0001 dated 5 January 2005 - reflective of his promotion to MSGin the Reserve Component

.Self authored Congressional Letter dated 15 January 2017 - wherein theapplicant acknowledges submission of his DD Form 149

.DA Form 2166-8 dated 4 February 2006 – reflective of the applicant being ratedat the rank of MSG while serving in the Reserve Component

.Congressional letter to the Chief of Army Legislative Liaison dated30 January 2017 – requesting assistance on behalf of the applicant withaddressing his request for highest grade determination

.Congressional Liaison and Inquiries response letter dated 27 February 2019 -acknowledging receipt of the applicants submitted DD Form 149

.Congressional Liaison and Inquiries response letter dated 7 March 2019 advisingthe applicants State Representative regarding the status of his open case

.Congressional letter to the Chief of Army Legislative Liaison dated 5 March 2019requesting review of the applicants case and lack of initial response

.Congressional Liaison and Inquiries response letter dated 17 May 2018



4.A review of the applicant’s service record reflects the following on:

.18 February 1981 (Order# 35-32) – he enlisted in the Army Reserve at the rankof Private (PVT/E1)

.1 April 1981 – he was transferred into the regular Army

.1 August 1992 (Order# 35-32) – he was released from the active Army at therank of Sergeant (SGT/E5); received the SSB and transferred back into the ArmyReserve

.25 February 2003 (Order# M-056-0016) – he was ordered to active duty for 365days at the rank of SFC

.15 July 2004 (Order# 04-217-00006 and Order # 05-210-00004) – he was againordered to active duty for 365 days at the rank of SFC

.31 October 2006 (Order #07-024-00004) – he was discharged from the ArmyReserve at the rank of MSG


.1 November 2006 – he enlisted in the regular Army at the rank of SSG

.27 April 2008 (Order #072-0604)– he was released from active duty, transferredinto the Retired Reserve and placed on the Temporary Retired List at the rank ofSSG



5.Title 10 USC, section 3964 states, each retired member of the Army covered bysubsection (b) (warrant officers and enlisted members) who at the time of retirement,are serving on active duty is retired with less than 30 years of active service is entitled,when his active service plus his service on the retired list totals 30 years, to beadvanced on the retired list to the highest grade in which he served on active dutysatisfactorily, as determined by the Secretary of the Army.

6.Title 10 USC, section 3961 states, unless entitled to a higher retired grade undersome other provision of law, a Regular or Reserve of the Army who retires other thanfor physical disability retires in the regular or reserve grade that he holds on the date ofhis retirement.

7.Title 10, USC, section 1372 (effective 4 January 1995), states unless entitled to ahigher retired grade under some other provision of law, any member of an Armed Forcewho is retired for physical disability under section 1201 or 1204 of this title, or whosename is placed on the TDRL under section 1202 or 1205 of this title, is entitled to thegrade or rank in which he or she is serving on the date when his or her name is placedon the TDRL or, if his or her name was not carried on that list, on the date when he orshe is retired

8.AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states thatSoldiers who first became members of the Armed Forces after 7 September 1980,retired pay is computed on 1/36 of the total amount of monthly basic pay received forthe high-36 months of active duty.

BOARD DISCUSSION: 

1.The Board carefully considered the applicant’s request, supporting documents andevidence in the records.  The Board considered the applicant’s statement, the length ofhis active duty service, the grade he held in the USAR and the grade he was serving inwhen he was medically retired.  The Board found no evidence to show that he wasselected for or promoted to a rank higher than SSG when he was medically retired fromactive duty and the applicant provided none.  The Board found that he has not reacheda combined 30 years of active duty service plus service on the retired list.  Based on apreponderance of evidence, the Board determined that the rank reflected when he wasplaced on the TDRL was not in error or unjust.

2.After reviewing the application and all supporting documents, the Board found thatrelief was not warranted.

BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: : : GRANT FULL RELIEF 

: : : GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

:XXX :XXX :XXX DENY APPLICATION 


BOARD DETERMINATION/RECOMMENDATION: 

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 



X 

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. 


ADMINISTRATIVE NOTE(S): 

Not Applicable 


REFERENCES: 

1.Title 10, USC, section 1552(b), provides that applications for correction of militaryrecords must be filed within three 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 three-year statute oflimitations if the ABCMR determines it would be in the interest of justice to do so.

2.Title 10 USC, section 3964 states, each retired member of the Army covered bysubsection (b) (warrant officers and enlisted members) who at the time of retirement,are serving on active duty is retired with less than 30 years of active service is entitled,when his active service plus his service on the retired list totals 30 years, to beadvanced on the retired list to the highest grade in which he served on active dutysatisfactorily, as determined by the Secretary of the Army.

3.Title 10 USC, section 3961 states, unless entitled to a higher retired grade undersome other provision of law, a Regular or Reserve of the Army who retires other thanfor physical disability retires in the regular or reserve grade that he holds on the date ofhis retirement.

4.Title 10, USC, section 1372 (effective 4 January 1995), states unless entitled to ahigher retired grade under some other provision of law, any member of an Armed Forcewho is retired for physical disability under section 1201 or 1204 of this title, or whosename is placed on the TDRL under section 1202 or 1205 of this title, is entitled to thegrade or rank in which he or she is serving on the date when his or her name is placedon the TDRL or, if his or her name was not carried on that list, on the date when he orshe is retired.

5.AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) states thatSoldiers who first became members of the Armed Forces after 7 September 1980,retired pay is computed on 1/36 of the total amount of monthly basic pay received forthe high-36 months of active duty.