IN THE CASE OF: BOARD DATE: 15 October 2021 DOCKET NUMBER: AR20210009012 APPLICANT REQUESTS: correction of his record to show he was retired in the highest grade satisfactorily held which was sergeant first class (SFC)/E-7. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * Self-authored letter in lieu of DD Form 149 (Application for Correction of Military Record) * Memorandum, Subject: Advisory Opinion Restore Retirement Pay based on High-3 Retirement Plan Instead of Current Final Pay Plan Due to Reduction in Rank, dated 26 October 2017 * Excerpt Title 10, United States Code (USC)m section 1407 FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code (USC), section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) 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 in pertinent part: a. He requests to be advanced on the retired list to the highest grade that he held satisfactorily while on active duty, under the provisions of Title 10, USC, section 3964. Although he retired on 31 March 2016 in the rank/grade of staff sergeant (SSG)/E-6 he previously held the grade of SFC while on active duty. According to his calculation, he has a total of 30 years of time in active service and on the retired list. b. He understands that Army Regulation (AR) 15-80 (Army Grade Determination Review Board (AGDRB) and Grade Determinations) states, "Generally, service in a grade will not be considered to have been satisfactory when reversion to a lower grade was expressly for prejudice or cause, due to misconduct, caused by Non- Judicial Punishment (NJP) pursuant to Article 15, Uniform Code of Military Justice (UCMJ), or the result of the sentence of a court-martial." However, he believes the AGDRB should advance him on the retired list to the grade of E-7 because the legal advice that he received from the legal assistant team during the Article 15 hearing was erroneously informed. He is attaching a memorandum he received back from the Army Review Boards Agency where he was submitting supporting documents to have his retirement rank changed to SFC. Memorandum, dated 26 October 2017 states: "Once he reaches a combined total of 30 years on active duty and time on the retired list, he may request an AGDRB for advancement on the retired list under the provisions of Title 10, USC, section 3964. 3. A review of the applicant's official records shows the following: a. On 1 August 2002, Orders Number 13-1, issued by the North Carolina Army National Guard, the applicant was promoted to the rank of SFC. b. On 21 September 2013, having had prior active service, the applicant was ordered to active duty in an Active Guard/Reserve status. c. On 8 January 2014, the applicant accepted NJP under the provisions of Article 15, UCMJ, for violating Articles 134 and 107. His punishment was reduction to the rank of SSG. d. On 31 March 2016, the applicant was honorably retired from active duty by reason of sufficient service for retirement. DD Form 214 (Certificate of Release or Discharge from Active Duty), item 4a (Grade, Rate or Rank) shows "SSG." He completed 2 years, 6 months, and 10 days of net active service, with 19 years, 5 months, and 19 days of prior active service, and 2 years, 7 months, and 3 days of prior inactive service. 4. The applicant provides: a. Memorandum, Subject: Advisory Opinion Restore Retirement Pay based on High-3 Retirement Plan Instead of Current Final Pay Plan Due to Reduction in Rank which was provided as an advisory opinion to ABCMR Docket Number, with emphasis on when the applicant obtained a combined 30 years of active service and time on the retired list he could request advancement on the retired list under the provisions of Title 10, USC, section 3964. b. Excerpt Title 10, USC, section 1407, with emphasis on the highest held grade for computation of retired pay based on the high three rules. ? BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. Evidence of record shows the applicant achieved the rank of SFC; however, he was reduced to SSG as a result of misconduct. One possible outcome was to grant relief since the applicant has surpassed 30 years since he first enlisted into the military. However, the majority of the Board determined there is sufficient evidence that shows he did not serve successfully at the highest rank held. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : :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. 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, 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 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. Title 10 USC, section 3964 states, each retired member of the Army covered by subsection (b) (Reserve 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 be advanced on the retired list to the highest grade in which he served on active duty satisfactorily, as determined by the Secretary of the Army. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210009012 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1