| Mr. Loren G. Harrell | Director | |
| Mr. Kenneth Aucock | Analyst |
| Mr. Calvin M. Fowler | Chairperson | |
| Ms. Irene N. Wheelwright | Member | |
| Ms. Margaret K. Patterson | Member |
APPLICANT REQUESTS: In effect, adjustment of his retired rank to reflect Sergeant Major (SGM), pay grade E-9.
PURPOSE: To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.
EVIDENCE OF RECORD: The applicant's military records show:
The applicant was inducted into the Army in September of 1942, served in the Pacific Theater of Operations during World War II, served in four campaigns during that war, and received numerous awards including the Asiatic Pacific Service Medal, the Good Conduct Medal, the Philippine Liberation Ribbon with
2 bronze service stars, and one bronze service arrowhead. He was separated on 16 September 1945.
The applicant reenlisted in the Army, served in various locations throughout the world, to include tours of duty in Germany, Korea, and Vietnam. He received numerous other awards to include the Korean Service Medal, the Presidential Unit Citation, the Armed Forces Expeditionary medal, and seven awards of the Good Conduct Medal. He was promoted to the rank of Master Sergeant, pay grade E-8 on 1 July 1960. The applicant retired on 30 April 1965 and was transferred to the Retired Reserve. He had 20 years, 1 month, and 9 days of service.
On 15 February 1966 the applicant was notified that his request for recall to active duty was not favorably considered because he was not qualified in one of the skills for which recall was authorized.
He made application again, requesting recall under the provisions of Army Regulation 601-250. His request was approved and he was ordered to active duty on 1 February 1968. He served in Vietnam, Korea, Germany, and Vietnam again prior to his release from active duty on 8 February 1971. He reverted to his retired status with the rank of Master Sergeant E-8.
Army Regulation 601-250, then in effect, establishes the application for recall program for retired enlisted personnel which was designed to provide a means whereby nondisabled retired enlisted personnel could apply for recall to active duty. Paragraph 7c of that regulation states, in pertinent part, that to be eligible for promotion to pay grade E-7, E-8, or E-9, personnel recalled must have sufficient time remaining in their period of obligation to insure a minimum of
2 years service in the grade by the completion date of their obligation. Extension of tours may be requested to meet this 2-year service obligation.
In the processing of this case an advisory opinion (COPY ATTACHED) was obtained from the DA Deputy Chief of Staff for Personnel. An official of that agency stated that soldiers recalled to active duty were required to have a minimum of two years remaining on their service obligation to be eligible for SGM promotion consideration.
The first centralized SGM board convened on 14 October 1968 and considered soldiers who were on a local order of merit list as of 31 July 1968. The applicant was not listed as being on a local list and therefore was not considered for SGM by the 1968 board. The 1969 SGM board convened on 3 March 1969 and the 1970 SGM board convened on 17 November 1970. The applicant did not have the required two years service remaining on his tour to be eligible for consideration by either board. Because the applicant failed to meet the eligibility requirements for the aforementioned boards, the DA DCSPER recommended that the applicant’s request be denied.
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. Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.
DISCUSSION: The alleged error or injustice was, or with reasonable diligence should have been discovered on 8 February 1971, the date of his release from active duty. The time for the applicant to file a request for correction of any error or injustice expired on 8 February 1974.
The application is dated 29 May 1996 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.
DETERMINATION: The subject application was not submitted within the time required. The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.
BOARD VOTE:
________ ________ ________ EXCUSE FAILURE TO TIMELY FILE
________ ________ ________ GRANT FORMAL HEARING
__CMF___ __INW__ __CMF__ CONCUR WITH DETERMINATION
Loren G. Harrell
Director
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