IN THE CASE OF: BOARD DATE: 5 December 2022 DOCKET NUMBER: AR20220004889 APPLICANT REQUESTS: in effect – * correction of his record to show he was retired in the rank/grade of sergeant (SGT/E-5) instead of specialist (SPC/E-4) * all back pay and allowances as result of the correction APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Forms 149 (Application for Correction of Military Record), 30 November 2021 * Orders Number 96-228-020, 19 August 1996 * Orders Number C02-891484, 24 February 2018 * DD Form 214 (Certificate of Release or Discharge from Active Duty), 28 October 2001 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. 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 effect, the rank listed on his retirement orders is an error. He should be receiving retirement pay in the rank of SGT/E-5 instead of SPC/E-4. He has submitted paperwork to different agencies on several occasions, but nothing has been done. His retirement pay grade should be SGT/E-5. 3. A review of the applicant's official military records show the following: a. Having had prior service, the applicant enlisted in the Georgia Army National Guard (GAARNG) in the rank of SGT on 2 March 2000. b. On 28 October 2001, DD Form 214 shows he was honorably released from active duty and transferred to his GAARNG unit. Item 4a (Grade, Rate, or Rank) shows SGT and item 12h (Effective Date of Pay Grade) shows 2 March 2000. c. On 31 October 2001, the U.S. Army Reserve (USAR) Personnel Command issued Orders Number C-10-131452 reassigning the applicant to the USAR Control Group (Reinforcement), effective 31 October 2001. His rank was shows SGT. d. On 29 January 2004, Headquarters, 878th Engineer Battalion, Tomahawk Village, Taji Airbase, Iraq, issued Orders Number 029-01 reducing the applicant from SGT/E-5 to SPC/E-4, effective on with a date of rank of 29 January 2004. The reduction in grade/rank was based on "misconduct" and the authority was listed as the Uniform Code of Military Justice (UCMJ). The facts and details related to the misconduct are not available. e. On 27 April 2005, the applicant was issued his Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter). f. On 12 October 2005, DD Form 214 shows the applicant was released from active duty and transferred to his ARNG unit. Item 4a (Grade, Rate, or Rank) shows SPC and item 12h (Effective Date of Pay Grade) shows 29 January 2004. g. On 8 October 2006, National Guard Bureau Form 22 (Report of Separation and Record of Service) shows the applicant was discharged from the GAARNG and transferred to the USAR Control Group (Retired Reserve). Item 5b (Pay Grade) shows E4 and item 6 (Date of Rank) shows 29 January 2004. h. On 24 February 2018, the U.S. Army Human Resources Command, Fort Knox, KY, issued Orders Number C02-891484 retiring and placing the applicant on the retired list in the retired grade of SPC/E-4, on 5 March 2018. 4. The applicant's record is void of evidence showing he was retired and/or placed on the retired list in the rank/grade of SGT/E-5, and he provided no evidence supporting this assertion. 5. The applicant provided Orders Number 96-228-020 issued by Headquarters, 143d Transportation Command, Orlando, FL, promoting him from SPC to SGT, effective on with a date of rank of 19 August 1996. Nevertheless, his record contains orders reducing him to SPC/E-4, under the provisions of the UCMJ, based on misconduct, effective on with a date of rank of 29 January 2004. BOARD DISCUSSION: After reviewing the application, 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. The Board concluded there was insufficient evidence of an error or injustice which would warrant a change to the applicant’s rank and/or associated back pay. 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, 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 3961 states, unless entitled to a higher retired grade under some other provision of law, a Regular or Reserve of the Army who retires other than for physical disability retires in the regular or reserve grade that he holds on the date of his retirement. 3. Army Regulation (AR) 15-185 (ABMCR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 4. AR 135-180 (Army National Guard and Army Reserve – Retirement for Non-Regular Service) implements statutory authorities governing the granting of retired pay for non- regular service to Soldiers in the Army National Guard (ARNG), Army National Guard of the United States (ARNGUS) or the U.S. Army Reserve (USAR). It states 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. Paragraph 4-6 (Computation of retired pay) states, in pertinent part, HRC will screen each retirement applicant's record to determine the highest grade (see table 4–2) held in the Armed Forces. In arriving at the highest grade satisfactorily held, the following criteria will apply: Service in the highest grade will not be deemed satisfactory and the case will be forwarded to the Secretary of the Army's Ad Hoc Review Board for final determination of the Soldier's retirement grade if, during the mandatory review of the Soldier's records, it is determined that any of the following factors exist: (a) 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 (b) There is information in the Soldier's service record to indicate clearly that the highest grade was not served satisfactorily. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220004889 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1