ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 1 August 2019 DOCKET NUMBER: AR20190007992 APPLICANT REQUESTS: * retirement as a staff sergeant (SSG) his highest grade held * retirement pay adjustment APPLICANT’S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) * Unit Readiness Noncommissioned Officer (NCO) business card * two DD Forms 149 (Application for Correction of Military Record) * leave and earnings statement * letter of support * DD Form 1883 (Survivor Benefit Plan (SBP) Election Certificate) * letter from Unit Readiness NCO * request for retired records * letter of recommendation * page two of military membership status * letter from Department of Military and Veterans Affairs Adjutant General's Office * retirement points dated 31 December 1991 and 1990 * award recommendation 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 served an extended period of time as a squad leader as a 12B30 * due to reorganization of the unit the 12B30 squad leaders became excess * he volunteered to be administratively reduced to Sergeant (SGT) to complete his 20 years for retirement * he held the rank of SSG for 18 months * he was assured by him volunteering to be reduced to SGT it would not affect his retirement because he already held the rank of SSG for over a year * he submitted a letter from the Unit Readiness NCO, which was endorsed by his company commander, for the Board's consideration 2. The applicant provides the following documents for the Board's consideration: * a business card of the unit's Readiness NCO at the time of the applicant's service * two DD Forms 149 request for correction of military records * leave and earnings statements from February 1991, December 1990, and July 1991 showing he was being paid as a SSG * a DD Form 1883 dated 6 February 1994 making his SBP elections as a SGT * a request for retired records from the Pennsylvania Army National Guard * Army National Guard Annual Statement dated 26 January 1994 with the applicant listed as a SGT * two Army National Guard Annual Statements dated 31 December 1991 and 31 December 1990, respectively, with the applicant listed as a SSG * an award recommendation with the applicant listed as a SSG * a memorandum for whom it may concern from the Operations Sergeant dated 28 March 1995 recommending the applicant for the operation and care of any piece of equipment 3. The applicant provides a letter from a Retirement Counselor of the Pennsylvania Army National Guard, dated 27 September 2013, which states: * she enclosed the forms the applicant needed to complete for his retirement at the age of 60 * she found forms showing the applicant held the rank of SSG as his highest rank * in order for him to get paid as a SSG she needed an order promoting him and reducing him showing the reason he was reduced * she requested a copy of the orders or he would be paid as a SGT in retirement 4. The applicant provides a letter written by the Unit Readiness NCO and endorsed by the company commander which states: * the author was the Unit Readiness NCO in August 1983 * the applicant had been paid for over four years as a SGT * he performed the duties of a squad leader for many years * the unit was reorganized in the 1980s * during one of the reorganizations the unit lost a combat engineer platoon * the change caused the four senior 12B NCOs to be excess * the applicant elected to move to a different platoon and voluntarily be reduced to SGT as long as he could retire as a SSG * the applicant was assured this was within regulation * the letter was endorsed by the company commander stating the applicant was a SSG squad leader * he was a very good NCO 5. The applicant provides a letter from the Retirement Services Coordinator of the Pennsylvania Army National Guard, which is written in response to the Readiness NCO's letter. It states: * the author will not be able to resolve or produce the missing documents for the applicant * he can provide direction and information as known in his office * when orders showing the highest grade held are sent to Human Resource Command, an administrative reduction order must be included to determine the grade of retirement and the manner in which the applicant was reduced * the rank of SSG must be held for one year and the reduction must not be for misconduct * if the documents are not provided, no determination can be made * after a thorough check of the applicant's records neither the promotion order nor the reduction order could be found * there is no doubt the applicant held the rank of SSG; however the two documents needed to prove this could not be located * the author suggested the applicant contact the Army Board for Correction of Military Records and to include the letter with his application 6. The applicant's record is void of an order promoting him to SSG. He includes documents which show he was paid as a SSG and was recommended for an award as a SSG. His records contain a DA Form 2-1 (Personnel Qualification Record) which shows in item 18 (Appointment and Reductions) he was promoted to SSG effective 7 August 1989 and was reduced to SGT effective 22 January 1992. His date of rank for SGT was his original date of rank,12 September 1978. The applicant's DA Form 2-1 shows he held the rank of SSG for over two years. 7. The applicant's record contains Orders 1-3 dated 22 January 1992. The order reduces the applicant from SSG to SGT with the reason as voluntary reduction (without prejudice). 8. Army Regulation 135-180 (Army National Guard and Army Reserve – Retirement for Non-Regular Service states in pertinent part that it is the responsibility of all qualified individuals to submit their application for retired pay no earlier than 9 months and no later than 90 days prior to the date retired pay is to begin normally at age 60. Applications should include among other official documents promotion orders showing the highest grade/rank held and any administrative reduction orders, if applicable. Soldiers who joined the military on or after 8 September 1980 must place the date of rank for the highest grade held on both the DD Form 108 (Application for Retired Pay Benefits) and DD Form 2656 (Data for Payment of Retired Personnel). 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, the letter form the Pennsylvania Department of Military and Veteran Affairs, his DA Form 2-1 (Personnel Qualification Record) reflecting his promotion to SSG effective 7 August 1989, Orders 1-3 dated 22 January 1992 reducing the applicant from SSG to SGT with the reason as voluntary reduction (without prejudice) and the rank reflected on his NBG 22 dated 22 May 1996. The Board determined, based on a preponderance of evidence, that the applicant did serve as a Staff Sergeant for more than the required period of time for him to be retired at that rank and that a correction to his records was warranted. The Board determined that any adjustment to retirement pay would be calculated by other agencies as a result of this correction. 2. After reviewing the application and all supporting documents, the Board found that partial relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected to show: - that he was promoted to SSG by the appropriate authority with a date of rank of 7 August 1989; - that he served as a SSG until 21 January 1992, and; - that he is eligible for non-regular retirement at the rank/grade of SSG/E-6 effective the date of his retirement. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to a calculation of any specific change in the amount of his retired pay as a result of this correction unless determined by Army Human Resources Command/DFAS. 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 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. 3. Army Regulation 135-180 (Army National Guard and Army Reserve – Retirement for Non-Regular Service states in pertinent part that it is the responsibility of all qualified individuals to submit their application for retired pay no earlier than 9 months and no later than 90 days prior to the date retired pay is to begin normally at age 60. Applications should include among other official documents promotion orders showing the highest grade/rank held and any administrative reduction orders, if applicable. Soldiers who joined the military on or after 8 September 1980 must place the date of rank for the highest grade held on both the DD Form 108 (Application for Retired Pay Benefits) and DD Form 2656 (Data for Payment of Retired Personnel). ABCMR Record of Proceedings (cont) AR20190007992 5