RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           15 March 2005
      DOCKET NUMBER:  AR20040000855


      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. Raymond J. Wagner             |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. Jonathon K. Rost              |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, a correction of his retired rank and
pay grade to sergeant first class/E-7 (SFC/E-7).

2.  The applicant states, in effect, that he was told to wait five years
and to request that his retired rank and pay grade be upgraded from
sergeant/E-5 (SGT/E-5) to SFC/E-7.

3.  The applicant provides a copy of his separation document (DD Form 214)
in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 22 September 1995.  The application submitted in this case
is dated 12 May 2004.

2.  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 allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitation if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant’s Personnel Qualification Record (DA Form 2-1) shows that
on 12 March 1985, he entered active duty in an Active Guard Reserve (AGR)
status as a member of the Pennsylvania Army National Guard (PAARNG), in the
rank and pay grade staff sergeant/E-6 (SSG/E-6).

4.  Item 18 (Appointments and Reductions) of the applicant’s DA Form 2-1
shows that he was promoted to SFC/E-7 on 7 December 1991, reduced to SSG/E-
6 on 21 December 1992 and reduced to SGT/E-5 on 9 March 1993.

5.  The record contains no specific information on the applicant’s
reduction from SFC/E-7 to SSG/E-6 on 21 December 1992.  However, it does
coincide with a position reassignment date contained on a Personnel Action
Form (DA Form 4187) on file that shows he was assigned to a materiel
storage and handling supervisor position with an authorized grade of E-6 on
that same date.
6.  On 6 February 1993, the applicant accepted nonjudicial punishment (NJP)
 under the provisions of Section 5301, Pennsylvania Code of Military
Justice (PCMJ), for behaving with disrespect toward a superior commissioned
officer, by willfully and unlawfully changing a DD Form 214, and wrongfully
and without proper authority wearing unauthorized awards on his uniform.
His punishment for these offenses was a reduction to SGT/E-5 and 14 days of
extra duty.

7.  Headquarters, United States Army Garrison, Fort George G. Meade,
Maryland Orders Number 241-0001, dated 29 August 1995, directed the
applicant’s release from active duty (REFRAD) for the purpose of disability
retirement on 22 September 1995 and his placement on the Retired List on
23 September 1995.  These orders indicated the applicant’s retired grade of
rank was SFC/E-7.  However, the command published Orders Number 257-001 on
14 September 1995, which amended the applicant’s retired grade of rank to
SGT/E-5.

8.  On 22 September 1995, the applicant was REFRAD for the purpose of
disability retirement after completing a total of 9 years, 6 months and 11
days of active military service.  The DD Form 214 he was issued confirms he
held the rank and pay grade of SGT/E-5 at the time.

9.  Title 10 of the United States Code, section 1212 provides the legal
authority for the grade to be awarded to members retiring for physical
disability.  It states, in pertinent part, that at the time any member of
an armed force who is retired for physical disability is entitled to a
grade equivalent to the highest of the following: the grade in which he is
serving on the date he was separated for disability; the highest grade in
which he served satisfactorily as determined by the Secretary of the Army;
or the grade to which he would have been promoted had it not been for the
physical disability that resulted in his separation.

10.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions)
prescribes the Army’s enlisted promotion and reduction policy.  Chapter 4
provides guidance on centralized promotions to sergeant first class, master
sergeant and sergeant major.  Paragraph 4-8 contains the policy of the
active duty service obligation (ADSO) necessary to retired in the pay
grades of E-7, E-8 and E-9.  It states, in pertinent part, that upon
promotion to these pay grades, a Soldier incurs a 2-year ADSO and must
complete that period of service prior to retirement.
11.  Army Regulation 15-80 (Army Grade Determination Review Board and Grade
Determinations) establishes policies, procedures, and responsibilities of
the Army Grade Determination Review Board (AGDRB) and other organizations
delegated authority to make grade determinations on behalf of the Secretary
of the Army (SA).  Paragraph 2-5 outlines circumstances that normally
result in an unsatisfactory service determination on behalf of the SA.
These circumstances include when a reversion to a lower grade was expressly
for prejudice or cause, owing to misconduct, caused by NJP, or the result
of the sentence of a
court-martial.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant held the rank and pay
grade of SGT/E-5 on the date he was REFRAD for the purpose of disability
retirement and that he was placed on the Retired List in that rank and pay
grade.

2.  There is no specific information available regarding a grade
determination being made at the time of the applicant’s REFRAD.  However,
the orders placing him on the Retired List as an SFC/E-7 makes it clear
officials were aware that he previously held that rank and pay grade.  The
fact the original orders were amended to change his retired rank and pay
grade to SGT/E-5 is an indication that a determination was made that his
service in higher ranks and pay grades was not determined to be
satisfactory.

3.  The record does not include specific information regarding the reason
for the applicant’s reduction from SFC/E-7 to SSG/E-6 on 21 December 1992.
However, given he was promoted to SFC/E-7 on 7 December 1991, it is clear
he did not complete the 2 year ADSO for that rank and pay grade necessary
for his service in that grade to be considered satisfactory.  Although, by
regulation, the ADSO could have been waived in connection with his
disability retirement, which would have allowed him to be placed on the
Retired List as an SFC/E-7, given he did not complete the ADSO and because
he was subsequently reduced from SSG/E-6 to SGT/E-5 for cause, it is
concluded he did not satisfactorily serve in a rank or pay grade above
SGT/E-5.

4.  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.


5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 22 September 1995.  Therefore, the
time for him to file a request for correction of any error or injustice
expired on
21 September 1998.  However, the applicant did not file within the 3-year
statute of limitations and has not provided a compelling explanation or
evidence to show that it would be in the interest of justice to excuse
failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___RJW_  ___JTM  _  ___JKR _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate
the existence of a probable error or injustice.  Therefore, the Board
determined that the overall merits of this case are insufficient as a basis
for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




            ____Raymond J. Wagner___
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040000855                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/03/15                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1995/09/22                              |
|DISCHARGE AUTHORITY     |AR 635-40                               |
|DISCHARGE REASON        |Disability                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |106.0010                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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