IN THE CASE OF BOARD DATE: 28 March 2023 DOCKET NUMBER: AR20220003880 APPLICANT REQUESTS: advancement on the retired list to the grade of master sergeant (MSG)/E-8, in accordance with Title 10, U.S. Code, section 3964, based on completion of 30 years of active service plus service on the retired list. APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DD Form 214 (Certificate of Release or Discharge from Active Duty) FACTS: 1. The applicant states he requests to be advanced on the retired list to the highest grade that he satisfactorily held while on active duty, under the provisions of section 3964, Title 10, U.S. Code. He retired on 1 February 2023 in grade of E-6. He previously held the grade of E-8 while on active duty. According to his calculation, he meets the requirement to have a total of over 30 years of active service and time on the retired list. He completed 21 years of service in the Reserve from 16 December 1987 to 2 December 2008 without a break in service. During that time, he was promoted to MSG/E-8 on 1 March 2002. He held that rank until he transferred to Active duty on 3 December 2008. He was reduced in grade to E-6 as a result of the transfer. a. He understands that Army Regulation 15-80 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 pursuant to article 15, UCMJ, or the result of the sentence of a court-martial." Since he has never had any such actions brought against him, he believes the Army Grade Determination Review Board should advance him on the retired list to the grade of E-8 because while he was serving in the Reserves, he was promoted to the grade and rank of E-8/MSG on 1 March 2002 after serving just over 14 ye (see attached promotion orders R046-206). b. On 20 August 2003, he was laterally appointed to the rank of first sergeant (1SG) while serving on active duty for the 2125th General Support Unit, Fort Bragg, NC and held that position until November 2004 (see attached 4187). He also believes that he meets the Time In Service requirement as his DIEMS (Date Initially Entered Military Service) date is 16 December 1987 which at the time of his retirement will give him 35 years of total service. 2. Review of the applicant’s service records shows: a. The applicant enlisted in the U.S. Army Reserve (USAR) on 30 January 1984. He served through multiple reenlistments, in a variety of Reserve assignments, including period of active duty training or mobilization, as follows: * 23 May 1989 to 29 July 1989, military occupational specialty training * 27 February 1997 to 18 November 1997, Mobilization (Bosnia) * 26 May 2004 to 25 May 2006, Mobilization * 26 May 2004 to 28 March 2008, Active Duty Operational Support b. The applicant was promoted to sergeant first class (SFC)/E-7 on 1 March 1999 and to master sergeant (MSG)/E-8 on 1 March 2002. c. The applicant was honorably discharged from the USAR on 2 December 2008. d. The applicant enlisted in the Regular Army (active duty) on 3 December 2008 in the rank/grade of SSG/E-6. He served in a variety of assignments. e. He requested and was approved for voluntary retirement based on length of active service. On 18 March 2022, Headquarters, III Corps, Fort Hood, TX published Orders 077-113 retiring him effective 31 January 2023 and placing him on the retired list in his retired grade of SSG/E-6 on 1 February 2023. f. The applicant retired on 31 January 2023. His DD Form 214 (certificate of Release or Discharge from Active Duty) shows he completed 14 years, 2 months, and 28 days of active service during this period. He also had 7 years, 3 months, and 17 days of prior active service (total, 21 years, 6 months, 15 days). 3. Title 10, USC section 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. 4. Based on the applicant’s total active service of 21 years, 6 months, 15 days as of date of retirement (31 January 2023), the applicant will reach the 30-year mark around July 2031. 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. By law and regulation, 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. The evidence of record shows the applicant retired on 31 January 2023 with less than 30 years of active service. Based on his total active service of 21 years, 6 months, 15 days as of date of retirement (31 January 2023), the applicant will reach the 30-year mark of active and retired service around July 2031. 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 of the U.S. Code, section 3964, provides the legal authority for advancement on the Retired List. It states, in pertinent part, that retired Soldiers are entitled to, when their active service plus service on the Retired List totals 30 years, to be advanced on the Retired List to the highest grade they held and in which they satisfactorily served while on active duty as determined by the Secretary of the service concerned. 3. Army Regulation 135-180 (Qualifying Service for Retired Pay Nonregular Service) states, in pertinent part, that a person granted retired pay will receive such pay in the highest grade (temporary or permanent) satisfactorily held by him or her during his or her entire period of service. Service in the highest grade will not be deemed satisfactory if it is determined that any of the following factors exist: * revision to a lower grade was expressly for prejudice or cause, due to misconduct, or punishment pursuant to Article 15, Uniform Code of Military Justice, or court-martial; or * there is information in the Soldier’s service record to indicate clearly that the highest grade was not served satisfactorily 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220003880 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1