RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           7 April 2005
      DOCKET NUMBER:  AR20040008424


      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. James E. Anderholm            |     |Chairperson          |
|     |Mr. Eric N. Anderson              |     |Member               |
|     |Ms. Linda M. Barker               |     |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, that the retired pay grade of her
deceased husband, a former service member (FSM), be corrected to E-7.

2.  The applicant states, in effect, that the FSM was promoted to the rank
of sergeant first class (SFC), but never received an advance in his pay
grade to
E-7.

3.  The applicant provides a copy of the FSM’s death certificate and
Department of the Army (DA) retirement orders on the FSM in support of her
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 31 August 1964.  The application submitted in this case
was received on 9 July 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 limitations 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 FSM’s record shows he completed 20 years and 28 days of active
military service at the time of his release from active duty (REFRAD) for
retirement on 31 August 1964.

4.  The FSM’s Service Record (DA Form 24), covering his period of service
from 30 November 1951 through his retirement date of 31 August 1964,
confirms in Section I (Appointments, Promotions, or Reductions), that he
was promoted to the rank and pay grade of SFC/E-6 on 30 November 1957 and
that this is the highest rank and pay grade he held and in which he served
while on active duty. It also confirms that this rank and pay grade were
made permanent (P) on
21 July 1962.

5.  On 5 May 1964, the FSM submitted an application for retirement (DA Form
2339).  This document confirms he requested REFRAD for retirement on
31 August 1964 and that he held the rank and pay grade SFC/E-6 at the time.


6.  The FSM’s Military Personnel Records Jacket (MPRJ) contains a copy of a
Data for Retired Pay (AGPZ Form 977), dated 22 May 1964, which was
completed on the FSM during his retirement processing.  This document shows
that the highest rank and pay grade the FSM attained while on active duty
was SFC/E-6.  It also confirms that his retired grade was established as
SFC/E-6.

7.  Department of the Army (DA) Special Orders Number 129, dated 22 May
1964, authorized the FSM’s REFRAD on 31 August 1964 and his placement on
the Retired List on 1 September 1964.  These orders also stipulated that he
would be placed on the Retired List in the rank and pay grade of SFC/E-6.

8.  On 31 August 1964, the FSM was issued a separation document
(DD Form 214), which he authenticated with his signature in Item 34
(Signature of Person Being Transferred or Discharged).  This document lists
the applicant’s rank and pay grade as SFC/E-6 (P), which confirms that this
was the permanent rank and pay grade he held on the date of his REFRAD, and
in which he would be placed on the Retired List.

9.  In 1958, the Army changed the enlisted rank and grade structure.  This
resulted in the rank title of master sergeant (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.
DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that the FSM’s retired grade should have
been established as E-7 based on his rank title of SFC and the supporting
documents she provided were carefully considered.   However, there is
insufficient evidence to support this claim.

2.  At the time of the 1958 change to the Army’s enlisted rank and grade
structure, the governing policy mandated that members who had been promoted
to MSG and SFC prior to the 1958 change would retain those rank titles and
the pay grades that were applicable prior to the change, unless they were
subsequently promoted under the new system.  There were no provisions for
advancing a member to a higher pay grade based on a given period of service
performed in his current rank and pay grade.

3.  The evidence of record confirms that the FSM was promoted to the rank
of SFC with a corresponding pay grade of E-6 on 30 November 1957, and that
this is the highest rank and pay grade he held on active duty.  It also
verifies that he was not promoted subsequent to the 1958 Army enlisted rank
and grade structure change.  He held the rank of SFC and pay grade E-6 on
the date of his REFRAD for the purpose of retirement, 31 August 1964; and
he was appropriately placed on the Retired List in that rank and pay grade
on
1 September 1964.  Therefore, there is no error or injustice related to the
FSM’s retired grade of SFC/E-6 and no basis to changing it at this time.

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 31 August 1964, the date of the FSM’s
separation for retirement.  Therefore, the time to file a request for
correction of any error or injustice expired on 30 August 1967.  However,
neither the FSM or applicant filed within the 3-year statute of limitations
and the applicant has failed to provide 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

___ENA _  ___JEA _  ___LMB _  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.




            ____James E. Anderholm___
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040008424                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/04/07                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1964/08/31                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |Retirement                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  803  |144.9213                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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