ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 7 May 2019 DOCKET NUMBER: AR20180006794 APPLICANT REQUESTS: * promotion to Sergeant Major (SGM/E9 * retirement pay adjustment retrospective and prospective APPLICANT’S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * request through his attorney * Order Number 106-16 promotion to SGM * Certificate for the Bronze Star Medal * Certificate for the Distinguished Order of Saint Martin * Order Number 40-02 termination of parachute status * Award of the Defense Meritorious Service Medal (DMSM) * Citation for the DMSM * Veteran's Affairs (VA) disability percentage * enlisted retirement with waiver * retirement photos * Leave and Earnings Statements * two previous Army Board for Correction of Military Records (ABCMR) cases * denial for an Army Grade Determination Review Board (AGDRB) * self-authored letter to the AGDRB FACTS: 1. The applicant, through his attorney, states: a. He requests the case be docketed and provide the applicant notice of receipt of the application and when the Board will hear his case. b. The application requests the Board have the AGDRB correct his military records to reflect he retired in the grade of E9, rank of SGM with an effective date of 30 September 2014 pursuant to 10 U.S. Code Section 3964, with corresponding adjustments to his retired pay, retrospective and prospective. c. The applicant joined the Army on 3 July 1984. He was a parachutist from November of 1984 through January of 2004 when he was medically disqualified from a. jumping. He served in the Special Forces Operations as a member of Delta Force from January 1989 until his retirement. He is the recipient of numerous awards and commendations to include the BSM and the Distinguished Order of Saint Martin, which was a highly selective process. d. The applicant deployed on numerous occasions with Delta Force, so much of his record is classified. He maintained a Top Secret security clearance which was used in his service to our country. He performed over 600 jumps over his 20 year career and became disabled as a result. His condition led the Army to terminate his jump status and an Army physical came him the option of going through the Disability Evaluation system or serve until he could retire. He chose the latter. As a result, the VA rated him at 80 percent disabled. e. The applicant was selected for promotion to SGM with an effective date of 1 May 2003. The promotion order did not state the promotion was conditional upon the applicant completing the Sergeant Major's Course. The order does not state his rank would be revoked if he did not attend the course. To accept the rank, the applicant needed to be promotable and accept a two-year service obligation. f. The applicant wore the rank of SGM for more than a year and he was paid E9 pay during that period of time. He held a sergeant major position and discharged those duties. Photographs of his retirement ceremony reflect his rank of SGM. g. The applicant applied for retirement around 15 June 2004. He took terminal leave from 20 July 2004 through 30 September 2004. The Army completed an Enlisted Retirement with Waiver with a suspense date of 8 August 2004. The applicant had requested a waiver for his two year obligation from his promotion to SGM. The command recommended the applicant be retired at the grade of Master Sergeant (MSG) because he had not completed the required course to maintain the rank of SGM. The applicant retired as a MSG. h. The applicant submitted an ABCMR application requesting his retirement rank to reflect SGM because his reduction to MSG was contrary to law. The application was denied stating it was not credible to believe the applicant was not aware of the requirement to attend the Sergeant Major's Academy to maintain his promotion. i. The ABCMR also stated, in response to the applicant's argument his orders for promotion did not state the school requirement, that the Army was not required by law to inform him of the requirement and stated the applicant did not meet the criteria to continue to hold the rank of SGM. j. The applicant requested the ABCMR reconsider their decision. His application was again denied. At no time between the two applications did the applicant request to be consider for advancement based on Title 10 USC 3964. a. k. The applicant petitioned the AGDRB on or about 23 May 2014 to change his retirement grade to SGM based on Title 10 USC 3964. His application was denied based on the decision of the previous ABCMR cases. The AGDRB stated they did not have the jurisdiction to consider his request based on the decision of the ABCMR. l. Chapter 9 of the Department of Defense Financial Management Regulation, in effect at the time, stated a member of the Army who retires with less than 30 years of service is entitled to a grade determination when his active service and the time on the retired list totals 30 years. m. Army Regulation 15-80 allows the AGDRB to make final discretionary grade determinations on behalf of the Secretary of the Army. It further describes the provisions of Title 10 USC 3964. Title 10 USC 3964 does not require the promotion to have been unconditional. It only requires the retiree to have held the higher rank. n. The applicant reached 20 years of service on 3 July 2004. His retirement date was 30 September 2004. His combined active duty and retired service exceeds 30 years. The applicant was promoted to SGM on 1 May 2003, served in that grade, and received pay for that grade until his retirement. He did not receive nonjudicial punishment while he held the grade of SGM and discharged his duties in an exemplary manner. He was not reduced for cause or misconduct. o. The Army cannot argue the applicant does not meet the criteria of Section 3964 because he was administratively reduced upon his retirement. Neither the statute nor the regulation require him to have completed the Sergeant's Major Academy or to have completed his two-year obligation. These requirements would defeat the purpose of the statute. The "30-year rule" applies to Soldiers such as the applicant who served in a higher rank yet did not retire at that rank. p. The Army cannot argue the applicant's promotion was erroneous or without legal effect. The order for promotion is dispositive as was noted by the ABCMR in its denial to the applicant's request. The applicant wore the rank of SGM, served as a SGM, and was paid as a SGM until his administrative reduction at retirement. q. The AGDRB stated they did not have jurisdiction regarding the applicant's request; however, Army Regulation 15-80 specifically authorizes the AGDRB to adjudicate 30-year rule applications. The applicant did not invoke 10 USC 3964 as a basis for relief in either of his ABCMR cases, therefore the AGDRB was not asked to review the ABCMR cases. r. The applicant, through his attorney, requests the Board members keep in mind the fact the applicant was physically broken when he made the election to retire. He was informed his spinal disease had degenerated to the point he would require physical disability evaluation. In the final years of his service, the applicant endured continual pain in his cervical and lumbar spinal regions. Rather than enter the disability a. evaluation system, he elected to retire. He did not seek to cut short his service as a SGM. s. Soldiers like the applicant are a gift to the Army. Congress enacted 10 USC 3964 for the benefit of men and women such as the applicant. The statute should not be tampered with and restricted by the Army. The applicant, by law, is entitled to be advanced on the retired list to the rank of SGM retroactive to the date of his retirement. 2. The applicant was promoted to the rank of SGM effective 1 May 2003. He provides Leave Earnings statements showing he was paid as a SGM. 3. The applicant requested a waiver of the two year obligation he incurred with his promotion to SGM to retire. His chain of command recommended he retire at the grade of MSG because he had not completed the required Sergeant's Major Academy prior to his request for retirement. 4. The applicant honorably retired from the Army on 30 September 2004 after serving 20 years, 2 months, and 28 days on active duty. Title 10, USC 3964 states retired members of the Army who retire with less than 30 years of active service are entitled, when their active service plus their service on the retired list totals 30 years, to be advanced on the retired list to the highest grade in which they served on active duty satisfactorily. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. Based upon the documentary evidence presented by the applicant and found within the service record, the Board concluded that the applicant knew of all educational requirements prior to retirement and failed to meet all those educational requirements for promotion to SGM prior to retirement. For that reason, the Board recommended denying the applicant request for relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X X X 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. 5/13/2019 X CHAIRPERSON Signed by: 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. REFERENCES: 1. Title 10, USC 3964 states each retired member of the Army who 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 be advanced on the retired list to the highest grade in which he served on active duty satisfactorily (or, in the case of a member of the National Guard, in which he served on full-time duty satisfactorily), as determined by the Secretary of the Army. This section applies to warrant officers of the Army; enlisted members of the Regular Army; and reserve enlisted members of the Army who, at the time of retirement, are serving on active duty (or, in the case of members of the National Guard, on full-time National Guard duty). 2. Army Regulation 15-80 (Army Grade Determination Review Board and Grade Determinations, states: a. Section 3964, Title 10, United States Code (10 USC 3964) entitles certain retired members of the Army who are retired with fewer than 30 years of active service, when such member’s active service plus service on the retired list totals 30 years, to be advanced on the retired list to the highest grade served on active duty satisfactorily. The AGDRB reviews each case individually to determine the highest grade served on active duty satisfactorily. This is not an automatic advancement on the retired list. Section 3964 does not apply in retirement for nonregular service (reserve retirement) cases when the retiree was not on active duty (or, in the case of members of the National Guard, when the retiree was not on full-time National Guard duty) at the time of retirement. b. Section 3964 applies to warrant officers of the Army; enlisted members of the Regular Army; and reserve enlisted members of the Army who, at the time of retirement, were serving on active duty (or, in the case of members of the National Guard, were on full-time National Guard duty). These individuals are eligible for advancement on the retired list when their active service plus service on the retired list totals 30 years. Individuals to be placed on the retired list with at least 30 years of active service will be considered for immediate advancement on the retired list. “Highest grade served on active duty” is the grade to which a soldier was actually promoted and paid pursuant to a lawful promotion. c. “Highest grade served on active duty” does not include merely being in a promotable status or serving in, “acting,” or holding a position or job title authorized at a higher grade, such as acting first sergeant or acting sergeant major.