IN THE CASE OF: BOARD DATE: 7 April 2011 DOCKET NUMBER: AR20100024397 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests correction of his retirement orders, dated 21 October 2005, to show he retired in the rank/grade of first sergeant (1SG)/E-8 instead of master sergeant (MSG)/E-8. 2. The applicant states he was promoted to 1SG/E-8 in June 2002 and he performed duties as a 1SG. He never held the rank of MSG. He knows the pay is the same; however, it is a matter of pride. 3. The applicant provides Orders 126-3 (Reassignment order), dated 7 September 1993, and his DA Form 2-1 (Personnel Qualification Record). CONSIDERATION OF EVIDENCE: 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 Army Board for Correction of Military Records (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. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant's records show he was born on 3 February 1946. 3. Having had prior service in the Regular Army, he enlisted in the U.S. Army Reserve (USAR) on 12 February 1981 and he served through multiple extensions or reenlistments. 4. On 30 April 1992, Headquarters, 78th Division, Edison, NJ, published Orders 38-18 promoting the applicant to MSG/E-8, effective 30 April 1992. 5. Item 18 (Appointments and Reductions) of the applicant's DA Form 2-1 does not show he was appointed to 1SG and his records do not contain official orders appointing him as a 1SG. However, item 35 (Record of Assignments) shows: * He served as the 1SG of B Company, 2nd Battalion, 309th Regiment, 78th Division, Camden, NJ, from 1 June 1992 to 22 February 1993 * He served as the 1SG of D Company, 1st Battalion, 4th Brigade, 78th "Regiment," Edison, NJ, from 23 February 1993 to 31 March 1994 6. On 22 March 1994, Headquarters, 78th Division, Edison, NJ, published Orders 29-1 releasing him from his assignment and transferring him to the Retired Reserve effective 1 April 1994. His rank is listed as 1SG. 7. On 21 October 2005, the U.S. Army Human Resources Command, St. Louis, MO, published Orders P10-590489 placing him on the retired list in the rank of MSG effective 3 February 2006, his 60th birthday. 8. Army Regulation 135-180 (Qualifying Service for Retired Pay Nonregular Service) implements statutory authorities governing the granting of “retired pay” to Soldiers and former Reserve components Soldiers. Paragraph 2-2 states a MSG/E8 who formerly held the title of 1SG and who wishes to be shown on the Retired list in his or her former title must include the following documents with their application for retired pay: A copy of the appointment to 1SG and a copy of the release order from the first sergeant status is required (Service must have been satisfactory and the person was not released from that status for cause.) DISCUSSION AND CONCLUSIONS: 1. The evidence of record shows the applicant was promoted to MSG/E-8 on 30 April 1992. Shortly thereafter, he was placed in a position of a company 1SG from June 1992 through March 1994. It is unclear if he was issued appointment orders to 1SG. Although he appears to have satisfactorily served as a 1SG and he was transferred to the Retired Reserve in that rank, regulations require the presentation of valid appointment orders to 1SG to be placed on the Retired List in that rank. Therefore, there is insufficient documentation to warrant granting his requested relief. 2. Should the applicant be able to obtain the appropriate orders appointing him to 1SG he may submit a request for reconsideration with supporting documents. BOARD VOTE: ____X____ ____X____ ___X_____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. Notwithstanding the staff DISCUSSION AND CONCLUSIONS above, the Board believed that the Department of the Army clearly recognized the applicant as a 1SG. This is particularly based on the orders in his records wherein his rank of 1SG is listed in the standard name line, since standard name lines are to contain an individual's actual rank, not an acting rank. Therefore, it is presumed that he had actually been appointed as a 1SG and the appointment orders are simply unavailable. 2. Therefore, the Board determined that the evidence presented was sufficient to warrant a recommendation for full relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by correcting Orders P10-590489 to show he was placed on the Retired List in the rank of 1SG. __________XXX_____________ CHAIRPERSON 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. ABCMR Record of Proceedings (cont) AR20100024397 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20100024397 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1