PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 19 August 2003
         DOCKET NUMBER: AR2003086018

         I certify that hereinafter is recorded the true and complete record of the proceedings 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:

Mr. Fred N. Eichorn		Chairperson
Ms. Margaret V. Thompson		Member
Mr. John T. Meixell		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

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

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests, in effect, that his retired rank be changed from Sergeant Major (SGM) to Command Sergeant Major (CSM).

3. The applicant states, in effect, that he was appointed to and satisfactorily served as CSM while on active duty. He claims that he was improperly retired as a SGM without the benefit of being allowed to rebut his removal from the CSM program. He claims that he was appointed a CSM on 8 July 1987, and was assigned and worked as a CSM until July 1990. He states that on 27 December 1989, he had a heart attack which was misdiagnosed and this resulted in his being unable to pass the two mile run portion of the Army Physical Fitness Test (APFT) in 1990. After discussing this situation with his battalion commander, he submitted a request for retirement. However, while awaiting his retirement orders, the brigade CSM initiated a relief for cause action against him.

4. The applicant further claims that while he was undergoing his retirement physical examination, medical testing revealed that he had suffered a heart attack or stroke in the past. Further medical testing resulted in a determination that he had been misdiagnosed in December 1989, and had in fact suffered a heart attack at that time.

5. The applicant states that at no time was he ever informed that he would not be allowed to retire as a CSM. The retirement orders and documents that were generated at 1st Personnel Command in Germany listed his rank as SGM based on phone calls between his brigade CSM and the 1st PERSCOM CSM, and he was not aware of this until the day he retired, at which point it was too late to appeal the action.

6. The applicant’s military records show that he served on active duty a total of 23 years, 3 months, and 19 days and was released from active duty (REFRAD) for the purpose of retirement on 30 September 1990.

7. The applicant’s Personnel Qualification Record (DA Form 2-1), confirms he was promoted to the rank of SGM on 8 July 1987. Item 18 (Appointments and Reductions) also indicates that the applicant was appointed to CSM on the same day he was promoted to SGM. A Certificate of Appointment on file in the applicant’s Military Personnel Records Jacket (MPRJ) also confirms that he was appointed to CSM on 8 July 1987.

8. An Application for Voluntary Retirement (DA Form 2339) on file in the applicant’s MPRJ shows that he requested retirement on 1 October 1990. The rank and pay grade listed in Item 5 (Current Grade, Pay Grade, Date of Rank, and MOS) of this form indicates that the applicant’s rank was CSM and his pay grade was E-9.

9. The record also contains a Data for Retired Pay (DA Form 3713),
dated 22 August 1990, prepared at 1st PERSCOM. This document lists the applicant’s retired grade as SGM and the highest grade he attained on
active duty as CSM. Orders Number 46-1, dated 22 August 1990, issued by
1st PERSCOM, directed the applicant’s release from active duty for retirement, and listed his retired grade of rank as SGM.

10. Orders Number 205-1, dated 27 August 1990, issued by the 520th Personnel Service Company, which authorized the applicant’s travel to a location of personnel choice for the purpose of retirement listed his rank in the standard name line as CSM.

11. There are no orders or other documents on file in the applicant’s MPRJ that indicate that any formal relief for cause or involuntary release from the CSM program actions were taken by the proper authority, or that orders were published revoking the applicant’s CSM appointment prior to his retirement.

12. A medical treatment record on file, dated 16 August 1990, indicates that changes noted in the medical testing conducted during the applicant’s retirement physical examination indicated that an episode of chest pains experienced by the applicant in December 1989, in retrospect were highly suggestive of myocardial infarction (heart attack).

13. On 30 September 1990, the applicant was issued a separation document that indicates he was released from active duty for the purpose of retirement on that date. This document contains the entry SGM in Item 4a (Grade, Rate or Rank).

14. Army Regulation 614-200 prescribes the reporting, selection, assignment, and utilization of Active Army enlisted personnel. Chapter 7 contains guidance on the assignment and utilization of The Sergeant Major of the Army, Command Sergeants Major, and Sergeants Major. Paragraph 7-10 contains guidance on release from the CSM program. It states, in pertinent part, soldiers recommended for removal will be notified through channels of the basis for removal and provided the supporting documentation. Soldiers may submit any matters in rebuttal, mitigation, or extenuation, and each commander in the chain of command will review the matters presented and include an appropriate recommendation to retain or remove the soldier from the CSM program. For command initiated removals, the removal authority is the first general officer exercising general court-martial authority. Soldiers will be notified in writing through command channels of the final determination.

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15. Army Regulation 635-200 regulation sets policies, standards, and procedures to for the separation of enlisted personnel. Chapter 12 sets policies and procedures for voluntary retirement of soldiers because of length of service. Paragraph 12-16 contains guidance on the grade title on the Retired List of former command sergeants major. It states, in pertinent part, that noncommissioned officers holding the grade title of sergeant major, at retirement, will be placed on the retired list in the grade title CSM if they served satisfactorily as a CSM and were released from the CSM Program, voluntarily or involuntarily, because of an assignment-limiting medical or physical condition.

CONCLUSIONS:

1. Medical documents on file support the applicant’s claim that he suffered a heart attack in December 1989 that went undiagnosed until it was discovered while he underwent his retirement physical examination in July 1990. The record also confirms that prior to experiencing this medical problem, the applicant had satisfactorily served as a CSM since 8 July 1987.

2. The evidence of record contains no documents, orders, or indication that formal action was ever taken to involuntarily remove the applicant from the CSM program. The documents and orders on file that were prepared and published by
1st PERSCOM all indicate the applicant’s rank was SGM. However, orders published by the applicant’s local Personnel Service Company listed his rank as CSM. This supports a conclusion that the neither the applicant or his local chain of command were ever made aware that he had been removed from the CSM program and laterally appointed to SGM. This corroborates the applicant’s claim that he first became aware of the rank title change when he reported for retirement processing.

3. In view of the facts of this case, the Board finds that the applicant’s removal from the CSM program and lateral appointment to SGM were never properly processed and approved by the proper authority prior to his retirement. Thus, it concludes that his records should be corrected to show he held the rank of CSM on the date of release from active duty for retirement and that he was placed on the Retired List in the rank and pay grade of CSM/E-9.

4. The statement accompanying his application gives the impression that the applicant believes a correction of his retired rank title to CSM would result in a higher retired pay grade and as a result higher retired pay. This is not the case, the pay grade of E-9 is applicable to both the rank title of CSM and SGM. Thus, a correction to his rank title will not change his retired pay grade of E-9, or result in the applicant receiving higher retired pay.

5. In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected by showing that the applicant held the rank title of Command Sergeant Major
on the date of his release from active duty; that he was placed on the Retired List
in the rank and pay grade of Command Sergeant Major/E-9; and by providing him a corrected separation document that reflects this change.

BOARD VOTE:

___MVT__ ___FE__ ___JM _ GRANT AS STATED IN RECOMMENDATION

________ ________ _______ GRANT FORMAL HEARING

________ ________ _______ DENY APPLICATION




                  _Fred N. Eichorn
                  CHAIRPERSON

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INDEX

CASE ID	AR2003086018
SUFFIX
RECON
DATE BOARDED	2003/08DD
TYPE OF DISCHARGE	HD
DATE OF DISCHARGE	1990/09/30
DISCHARGE AUTHORITY	AR 635-200 C12
DISCHARGE REASON	Retirement
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1. 803	144.9213
2.
3.
4.
5.
6.