MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 23 January 2003
         DOCKET NUMBER: AR2002078747

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Ms. Kathleen A. Newman		Chairperson
Ms. Gail J. Wire		Member
Mr. Patrick H. McGarthy, Jr.		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: In effect, that his retired rank title be changed from master sergeant (MSG) to first sergeant (1SG).

APPLICANT STATES: In effect, that when he left the Army in 1956, after
20 years of service, he was a sergeant first class (SFC). He claims that his letter of retirement authorized him to be advanced on the Retired List to MSG, but he believes this action was in error. He states that his separation document
(WD AGO Form 53-55), dated 8 November 1945, shows that the highest rank he held was 1SG, and it is his belief that he should have been retired in that rank. In support of his application, he provides a copy of a Certificate of Retirement, dated 4 April 1956, his WD AGO 53-55, dated 8 November 1945, orders authorizing his advancement to MSG on the Retired List, and a 1980 letter from a legal assistance officer requesting clarification on the applicant’s retired rank title.

EVIDENCE OF RECORD: The applicant's military records show:

He served on active duty a total of 20 years and 2 days and was released from active duty (REFRAD) for the purpose of retirement on 31 January 1956. The applicant’s record of service between 27 September 1935 and 20 July 1949 confirms that he served as a 1SG from 2 April to 14 October 1942, and again from 17 March 1943 to 25 July 1945.

The applicant’s Service Record (DA Form 24), covering his period of service from 21 July 1949 through his retirement date of 31 January 1956, confirms in
Section I (Appointments, Promotions, or Reductions) that on 8 August 1955, he was promoted to rank and pay grade of SFC/E-6, which was the rank he held on the date of his separation for the purpose of retirement.

Department of the Army Special Orders (DASO) Number 9, paragraph 99, dated
12 January 1956, authorized the applicant’s REFRAD on 31 January 1956, and his placement on the Retired List on 1 February 1956. This order also stipulated that he would be placed on the Retired List in the rank and pay grade of
SFC/E-6.

On 31 January 1956, the applicant was issued a separation document
(DD Form 214), which he authenticated with his signature in Item 48 (Signature of Person Being Separated). This document lists his rank as SFC, which confirms that the permanent pay grade he held on the date of his REFRAD and in which he would be placed on the Retired List was E-6.

On 4 February 1966, The Adjutant General (TAG) of the Army authorized the applicant’s advancement to the rank and pay grade of MSG/E-7 on the Retired List, based on Army policy guidance that allowed this action based on his satisfactory service as a 1SG from 2 April through 14 October 1942 and from
17 March 1943 to 25 July 1945.
In 1958, the Army changed the enlisted rank and grade structure. This resulted in the rank title of MSG corresponding with the pay grade of E-8; the rank title of SFC corresponding to the pay grade E-7; and the rank title of staff sergeant (SSG) corresponding to the pay grade E-6. However, this structure change did not impact either the rank title or the pay grade of personnel that had been promoted prior to the change, which is the operative policy in this case. In other words, unless subsequently promoted under the new system, members who had been promoted to MSG and SFC prior to the 1958 change retained those rank titles and the pay grades that were applicable prior to the change, which were
E-7 for MSG and E-6 for SFC.

Army Regulation 635-200 prescribes the current policy and procedure for the separation of enlisted personnel. Chapter 12 contains the policy on separation for the purpose of retirement. Paragraph 12-17 (Grade title on Retired List of former 1SG) states, in pertinent part, that noncommissioned officers (NCO) holding the rank and pay grade of MSG/E-8 at retirement, whose records show successful service as 1SG, will be placed on the retired list in the grade title, 1SG. However, it further stipulates that the soldier must have served as a 1SG while holding the pay grade of E-8, and that service as a 1SG that was performed while holding a pay grade below E-8 does not meet this requirement.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. The Board notes the applicant’s contention that his retired rank title should be 1SG vice MSG, as is currently recorded in his personnel records. However, it still finds insufficient evidence to support this claim.

2. By regulation, in order to placed on the Retired List in the rank title of 1SG, a NCO must hold the rank and pay grade of MSG/E-8 at the time of their REFRAD for the purpose of retirement, and must have served as a 1SG while holding the pay grade of E-8, service as a 1SG while holding a pay grade below E-8 does not satisfy this regulatory requirement.

3. The evidence of record confirms that in accordance with the applicable laws and regulations in effect at the time, the applicant was processed for retirement and placed on the Retired List in the rank and pay grade of SFC/E-6. Further, that at the time his active duty service and time on the Retired List equaled
30 years, he was advanced to the rank and pay grade of MSG/E-7 on the Retired List based on his satisfactory service as a 1SG during two different periods between 1942 and 1945.

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4. The Board finds no regulatory provisions were in effect at the time of the applicant’s retirement or advancement on the Retired List that provided for his placement on the Retired List in the rank title of 1SG. Further, current regulatory policy mandates that in order to be placed on the Retired List with the rank title of 1SG, a member must hold the rank and pay grade of MSG/E-8 at the time they are REFRAD for the purpose of retirement, and they must have held the pay grade of E-8 at the time they served as a 1SG. Thus, the Board finds no past or current regulatory policy that provides for the applicant’s placement on the Retired List in the rank title 1SG.

5. The Board wishes to advise the applicant that his claim that he served as a 1SG is not in question, and in fact it is verified in the existing records. However, lacking independent evidence showing that he served as a 1SG under past or current criteria that would allow his placement on the Retired List in that rank title, the Board is compelled to deny the requested relief. This action is taken solely in the interest of fairness and equity for all those who served during this same time period and who faced similar circumstances.

6. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.

7. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

__KAN__ __GJW _ __PHM __ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2002078747
SUFFIX
RECON
DATE BOARDED	2003/01/23
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	1956/01/31
DISCHARGE AUTHORITY	AR 635-200
DISCHARGE REASON	Retirement
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 306	129.0400
2.
3.
4.
5.
6.