IN THE CASE OF: BOARD DATE: 28 September 2023 DOCKET NUMBER: AR20230002697 APPLICANT REQUESTS: retirement at the highest grade of Gunnery Sergeant (GYSGT)/E-7 obtained while serving in the U.S. Marine Corps (USMC). APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Self-authored letter * Certificate, USMC, 2 July 2000 * DD Form 214 (Certificate of Release or Discharge from Active Duty), 30 October 2004 * Memorandum – Subject: Sanctuary Eligibility Status, 28 January 2008 * Orders Number A-05-809509, 21 May 2008 * Orders Number A-05-809509A01, 22 May 2008 * Orders Number 008-0153, 8 January 2009 * Memorandum – Subject: Sanctuary Retirement, 9 April 2009 * DD Form 214, 31 May 2009 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 pertinent part that on 28 January 2008, he was placed on active-duty orders in a sanctuary status in order to complete 20 years of active-duty service. He contests that, prior to enlisting in the U.S. Army, he previously served in the USMC and obtained the pay grade of E-7. The documentation completed during his sanctuary processing indicated that he would retire at the pay grade of E-6, but his rank upon retirement would reflect E-7 based upon it being the highest pay grade that he held. After retiring from military service, he was advised that he had to wait 10 years before he could apply to have his pay grade changed to E-7. However, 2 years prior to reaching that point, he received communication from the Pentagon which indicated that his retired pay grade would remain as E-6. Upon inquiry, he was advised that this was an issue to be addressed by the Defense Finance and Accounting Service (DFAS). 3. A review of the applicant's available service records reflects the following: a. On 26 May 1987, the applicant enlisted in the USMC where he served on active duty until 30 October 2004 when he was discharged at the rank of GYSGT/E-7 due to the commission of a serious offense. DD Form 214, item 12h. (effective date of pay grade) reflects "2 July 2000." b. On 7 April 2006, the applicant enlisted in the Army National Guard (ARNG) for 3 years at the rank/grade of sergeant (SGT)/E-5. c. On 3 October 2007, the U.S. Army Human Resources Command (AHRC) issued Orders Number A-10-720223 ordering the applicant to active-duty for operational support, effective 7 October 2007, for a period of 8 months 18 days, with a projected end date of 24 June 2008. d. On 27 February 2008, the TXARNG issued Orders Number 058-1131 announcing the applicant's promotion to the rank/grade of staff sergeant (SSG)/E-6, effective 8 February 2008. e. On 21 May 2008, AHRC issued Orders Number A-05-809509 ordering the applicant to active-duty, effective 5 June 2008, for a period of 726 days in order to complete 20 years of active Federal service under the extended active-duty sanctuary program. f. On 20 August 2008, Headquarters III Corps and Fort Hood issued Orders Number 233-0147 releasing the applicant from active duty, effective 31 May 2009, at the rank of SSG and placing him on the retired list at the rank of SFC. g. On 8 January 2009, Headquarters III Corps and Fort Hood issued Orders Number 008-0153 amending Orders Number 233-0147 to reflect a change in the statutory authority supporting the applicant's retirement from Title 10, USC, section 3914 to Title 10, USC, section 3964. h. On 9 April 2009, Headquarters III Corps and Fort Hood issued Orders Number 099-0149 amending Orders Number 233-0147 to reflect a change of the applicant's retired rank from SFC to now reflect SSG. i. On 31 May 2009, the applicant was retired from military service at the rank of SSG. j. On 12 January 2022, the Army Grade Determination Review Board conducted a board to consider the applicant's request for advancement on the retired list to the rank of SFC. The board denied the applicant's request noting that he was discharged from the USMC with a General discharge for the commission of a serious offense. The applicant was serving at the rank of SFC during this offense. Army Regulation 15-80 (Army Grade Determination Review Board and Grade Determination), paragraph 2-5, provides that service in the highest grade or an intermediate grade will normally be considered to be unsatisfactory when there is sufficient unfavorable information to establish that the Soldier's service in the grade question was unsatisfactory. 4. The applicant provides the following a: a. Certificate, USMC, dated 2 July 2000, reflective of the applicant being appointed meritoriously to the rank of GYSGT within the USMC on 2 July 2000. b. Memorandum – Subject: Sanctuary Eligibility Status, dated 28 January 2008, reflective of the applicant being identified as eligible for sanctuary status and further approved to enter Title 10, USC, section 12686 status in order to complete 20 years of Active Federal Service. c. Orders Number A-05-809509A01, dated 22 May 2008, reflective of Orders Number A-05-809509 being amended to reflect a change in the orders duration from 726 days to now reflect 361 days resulting in a projected end date of 31 May 2009. d. Memorandum – Subject: Sanctuary Retirement, dated 9 April 2009, reflective of the approval of the applicant's projected retirement date of 31 May 2009. Paragraph 5 provides that the applicant would be retired under the provisions of Title 10 USC, section 3964 and 3914 at the rank/grade of SSG/E-6 with the retired pay of SFC/E-7 due to his service in the USMC at the pay grade of E-7. This information should be noted in the remarks section of the DD Form 214. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found relief is warranted. 2. The Board found that, although the applicant was discharged from the USMC for commission of a serious offense with service characterized as under honorable condition (general), he was not reduced in grade by the USMC for misconduct and he had served in pay grade E-7 in the USMC for more than 4 years. Based on this evidence, the Board determined his service in pay grade E-7 was satisfactory for the purpose of placement on the Retired List in the highest grade he held. The Board determined his record should be corrected to show he was placed on the Retired List in pay grade E-7 and he should be paid any additional retired pay he is due as a result of this correction. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected to show he was placed on the Retired List in pay grade E-7. He should be paid any additional retired pay he is due as a result of this correction. 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. Army Regulation 135-180 (Retirement for Non-Regular Service) paragraph 4-6 (Computation of Retired Pay) provides that if a Soldier was transferred to the Retired Reserve or discharged on or after 25 February 1975, the retired grade will be that grade which a commissioned officer or enlisted Soldier held while on active duty or in an active reserve status for at least 185 days or 6 calendar months. Table 4-2 (Rules for Highest Grade Held timelines) provides that an enlisted Soldier in the rank of SSG and below must serve for 1 year as a SSG (voluntary retirement) or 185 days if involuntarily retired. A SFC or above must serve for 3 years as a SFC (voluntary retirement) or 185 days if involuntarily retired. 3. Title 10, USC, Section 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. 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. 4. 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. 5. AR 15-80 states: a. Paragraph 1-11 (AGDRB) the AGDRB will make final discretionary grade determinations on behalf of the Secretary of the Army. The AGDRB will recommend to the appropriate authority the highest grade satisfactorily held. b. Paragraph 2-5 (Unsatisfactory Performance) service in the highest grade normally will be considered to have been unsatisfactory when reversion to a lower grade was owing to misconduct. There is sufficient unfavorable information to establish that the Soldier’s service in the grade in question was unsatisfactory. One specific act of misconduct may or may not form the basis for a determination that the overall service in the grade was unsatisfactory, regardless of the period of time served in grade. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20230002697 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1