IN THE CASE OF: BOARD DATE: 11 October 2023 DOCKET NUMBER: AR20220012075 APPLICANT REQUESTS: correction of his records to show he retired in the rank/grade of master sergeant (MSG)/E-8 vice staff sergeant (SSG)/E-6. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Letter from Defense Finance and Accounting Service (DFAS), 12 August 2022 * Military Pay Chart * Application for Voluntary Retirement, 27 October 2009 * Promotion Orders to master sergeant (MSG)/E-8, 1 October 2005 * DD Form 214 (Certificate of Release or Discharge from Active Duty), 31 March 2010 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, 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 he retired after 23 Years of military service. Prior to his retirement date, I was reduced to the pay grade of SSG (E-6). When his pay was calculated for retirement, it was calculated at the E-6 pay grade, but he held the rank of E-8 for over 4 years, from 20051001 until 20090713. He has been underpaid for his retirement for the past 12 years and all other efforts to try and remedy this situation have been resolved. He has been trying to get his rank for High-3 (36) changed from E-6 to E-8 and recoup any back pay he is entitled to (12 Years), and finally receive the correct monthly pay. He believes that the retirement calculations for his retired pay were based on his rank at retirement and not his High-3 (36). 3. Review of the applicant’s service records shows: a. The applicant enlisted in the Regular Army on 30 December 1986. He served through multiple reenlistments in a variety of assignments, and he was promoted to MSG/E-8 on 1 October 2005. b. On 17 June 2009, he was convicted by a general court-martial at Vilseck, Germany on the following offenses: * one specification, in Germany, wrongfully and knowingly possessing a thumb drive, containing forty-six (46) digital images of child pornography, which conduct is prejudicial to the good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces * one specification, in Romania, wrongfully and knowingly possessing a thumb drive, containing one (1) digital video of child pornography, which conduct is prejudicial to the good order and discipline in the armed forces and of a nature to bring discredit upon the armed forces * one specification, in Romania violating a lawful general regulation, by wrongfully using a government owned communications system to access pornographic images c. The court sentenced him to be reduced to the grade of E-6 and to be confined for six months. The convening authority approved the sentence on 2 September 2009. He was reduced to SSG/E-6 on 1 July 2009. d. on 9 September 2009, he submitted a request for voluntary retirement. The chain of command and approving authority approved his request. e. On 8 March 2010, Bamberg Transition Center published Orders 067-0001 reassigning the applicant to the Transition Center for separation processing and Orders 067-02 retiring the applicant in the rank/grade of SSG/E-6 and placing him on the retired list effective 1 July 2009 f. the applicant retired on 30 June 2009. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 23 years and 11 days of active service. It also shows his rank/grade as SSG/E-6 with an effective date of pay grade as 1 July 2009. 4. On 31 March 2023, the Office of the Deputy Chief of Staff, G-1 submitted an advisory opinion in the processing of this case. A G-1 advisory official stated: a. [Applicant] retired effective 1 April 2010 after reaching 23 years of active federal service. According to the application for review, the applicant previously held the rank of master sergeant (MSG/E-8) but was reduced in rank prior to his retirement because of a court martial. The retired grade in accordance with Title 10 (T10) United States Code (USC) section 7341 is "the regular or reserve grade that the member holds on the date of the member's retirement," which in this case would be SSG/E-6. b. The applicant enlisted in the Army on 22 October 1986, so he was eligible for and elected to receive the Career Status Bonus (CSB) in accordance with T37 USC 354. Therefore, he falls under a reduced retirement (REDUX). The retired pay multiplier for members who accept the CSB/REDUX is calculated as prescribed under T10 USC 1409, which states that a Soldier who elected to receive the CSB would have their multiplier reduced by one percentage point for each full year under 30 years of service. [The CSB was a one-time $30,000 payment offered before Jan 1, 2018, to certain active-duty members upon completion of 15 years of creditable service. In exchange for the bonus, the member accepted a reduction in that member's retired pay percentage for each year less than 30 years that the member served. So, for example, a member who elected the CSB and retired with 20 years of service would receive a retired pay product of 40% vice 50% [(2.5% X 20) - 10% = 40%)] vice [(2.5% X 20) = 50%]. c. The applicant enlisted in the Army after September 7, 1980; therefore, his retired pay base is governed by Title 10 USC 1407. In general, Title 10 USC 1407 provides that the retired pay base will be equal to the member's high-36 average. However, there is an exception under Title 10 USC 1407(f) that enlisted members who are reduced in grade as the result of a court-martial sentence will have their retired pay base calculated under Title 10 USC 1406 (Final Pay) rather than the high-36 average, meaning the retired pay base must be calculated based on the lower grade. Because of the end-of- career reduction, the retired pay base is, by law, determined under Title 10 USC 1406 (final pay as SSG/E6). Enlisted Soldiers who are determined not to have served satisfactorily in the highest grade held do not get the benefit of high-36 averaging if reduced in grade as the result of court­ martial, nonjudicial punishment, or an adverse administrative action. The purpose of the exception found in Title 10 USC 1407(f) is to ensure that the retired pay base calculation excludes any months during which the member received pay at the higher grade (in this case MSG/E-8). d. Based on the sections of law referenced above, the applicant's retired pay was calculated correctly by the Defense Finance and Accounting Service (DFAS). The general rule for determining the percent multiplier under the final pay retired pay plan is 2.5 percent X years of service (YOS). The calculation for the applicant would have been 2.5 percent X 23 years= 57.5 percent (note: partial months are dropped). However, because he elected to receive the CSB, the 57.5 is reduced one percentage point for each full year of creditable service less than 30, so the 57.5 percent multiplier was reduced by seven percent resulting in his final multiplier being 50.5 percent. The applicant’s retired pay base of $3,484.50 X his multiplier of 50.5 percent results in a gross initial retired pay of $1,759. He has also received cost of living adjustments (COLAs) since his retirement. e. The applicant states that "I am trying to get my rank for High-3 (36) changed from E-6 to E-8 and recoup any back pay I am entitled to (12 Years) and finally receive the correct monthly pay." However, a review of his record shows that his retired rank was established correctly and in accordance with the law under Title 10 USC 7341. And his retired pay was computed correctly under Title 10 USC sections 1407, 1406 and 1409. There is no evidence of an error or an injustice and there are no changes or corrections warranted at this time. f. When the applicant has reached a combined total of 30 years on active duty and time on the retired list, he may request an Army Grade Determination Review Board for advancement on the retired list under the provisions of Title 10 USC Section 7344. For additional information regarding the AGDRB, he can refer to Army Regulation 15-80. 5. The applicant responded by email on 21 September 2023. He indicated that he read and understood the regulations regarding his case, and he was not aware of the regulations at the time of submission. Everywhere he looked stated something different, but he accepts the results of the board. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. Upon review of the applicant’s petition, available military records and the Office of the Deputy Chief of Staff, G-1 advisory opinion, the Board concurred with the advising official finding the applicant previously held the rank of master sergeant (MSG/E-8) but was reduced in rank prior to his retirement because of a court martial. The retired grade in accordance with Title 10 (T10) United States Code (USC) section 7341 is "the regular or reserve grade that the member holds on the date of the member's retirement," which in this case would be SSG/E-6. The Board determined the evidence presented does not demonstrate the existence of a probable error or injustice. 2. The Board determined based on evidence in the record, the applicant was eligible for and elected to receive the Career Status Bonus (CSB) in accordance with T37 USC 354. Therefore, the applicant falls under a reduced retirement (REDUX). The retired pay multiplier for members who accept the CSB/REDUX is calculated as prescribed under T10 USC 1409, which states that a Soldier who elected to receive the CSB would have their multiplier reduced by one percentage point for each full year under 30 years of service. The Board agreed the applicant’s retired rank was established correctly and in accordance with the law under Title 10 USC 7341. And his retired pay was computed correctly under Title 10 USC sections 1407, 1406 and 1409. Therefore, the Board denied relief. 3. The Army has an interest in maintaining the integrity of its records for historical purposes. The information in those records must reflect the conditions and circumstances that existed at the time the records were created. In the absence of evidence that shows a material error or injustice, there is a reluctance to recommend that those records be changed. 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. 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 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, U.S. Code, section 7341 states unless entitled to a higher retired grade under some other provision of law, a Regular or Reserve of the Army not covered by subsection (a) who retires other than for physical disability retires in the regular or reserve grade that the member holds on the date of the member's retirement. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220012075 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1