ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 14 November 2019 DOCKET NUMBER: AR20190004508 APPLICANT REQUESTS: retirement rank be updated from Specialist (SPC)/E-4 to Sergeant (SGT)/ E-5. APPLICANT’S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * self-authored letter requesting correction * promotion order * reduction order FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, U.S. Code, section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states: * he was promoted to the rank of SGT on 17 December 2010 * he took a voluntary reduction to SPC on 3 May 2013 because he was awaiting medical retirement and his unit was preparing to deploy to Afghanistan * by accepting the voluntary reduction, it allowed a deploying Soldier to fill the SGT slot he held * he was told by his unit leadership he would retain his SGT rank for his retirement * his Department of Veterans Affairs (VA) disability has not been lowered and he noticed his retirement payment is in the rank of SPC * he learned he was eligible for Combat Related Special Compensation which is affected by his retirement rank 3. The applicant provides the following documents for the Board's consideration: * Orders 351-1019, Published by Joint Force Headquarters, Minnesota, dated 17 December 2010 promoting him to the rank of SGT effective 29 December 2010 * Orders 123-1016, Published by Joint Force Headquarters, Minnesota, dated 3 May 2013, voluntarily reducing him from SGT to SPC effective 14 April 2013 4. The applicant's service records contain the following documents for the Board's consideration * a DA Form 4187 (Personnel Action), dated 14 April 2013, which shows: o the applicant requested voluntary reduction o he requested an effective date of 14 April 2013 o he understood he had to compete with his peers for promotion opportunities o the reason for his request was due to his inability to maintain the standard expected of a noncommissioned officer * National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) showing he served in the ARNG and was transferred to the Retired Reserve in the rank of SPC on 3 March 2014 * Orders D028-02, published by US Army Physical Disability Agency, dated 28 January 2014, placed the applicant on the retired list on 4 March 2014 in the grade of SPC 5. Army Regulation 600-8-19 (Enlisted Promotions and Reductions) states, if approved by the unit commander, a Soldier in the Army National Guard may volunteer, in writing, on DA Form 4187 for reduction to any lower grade for reassignment to another position, to another program, or to continue in service. The promotion authority may then administratively reduce the Soldier without board action. The DOR will remain the same as previously held in the grade to which reduced. 6. 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: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered the applicant’s statement, his record of service, his service as a SGT for more than two years, his requested voluntary reduction in grade, unit approval of his request and his placement on the retired list due to permanent disability as a SPC. The Board found no evidence of misconduct and determined that applicant served satisfactorily at the rank of SGT and that a correction to the applicant’s record was required. 2. After reviewing the application and all supporting documents, the Board found that relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION 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 amending United States Army Physical Disability Agency Orders D028-02, dated 28 January 2014 as follows: - Retired grade of rank: “E-5” vice “E-4.” 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, 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. 2. Army Regulation 600-8-19 (Enlisted Promotions and Reductions) provides guidance in for the promotion and reduction of enlisted members. If approved by the unit commander, a Soldier in the Army National Guard may volunteer, in writing, on a DA Form 4187 (Personnel Action) for reduction to any lower grade for reassignment to another position, to another program, or to continue in service. The promotion authority may then administratively reduce the Soldier without board action. The DOR will remain the same as previously held in the grade to which reduced. 3. 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). 3. Army Regulation 15-80 (Army Grade Determination Review Board and Grade Determinations), further states: a. Section 3964, Title 10, United States Code (10 USC 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. ABCMR Record of Proceedings (cont) AR20190004508 4