RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        20 December 2005
      DOCKET NUMBER:  AR20050000413


      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             |
|     |Ms. Prevolia A. Harper            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James C. Hise                 |     |Chairperson          |
|     |Mr. Ronald E. Blakely             |     |Member               |
|     |Ms. Jeanette R. McCants           |     |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 that his retired rank title be changed from
master sergeant (MSG) to first sergeant (1SG).

2.  The applicant states that an error was made on his DD Form 214
(Certificate of Release from Active Duty) during his outprocessing for
retirement.  He further states that his rank should have been shown as 1SG
instead of MSG.

3.  The applicant provides a copy of his DD Form 214 and a copy of Orders
Number 132-55, Headquarters, 24th Infantry Division, Fort Stewart, Georgia
in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which
occurred on 31 May 1996.  The application submitted in this case is dated
27 December 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 applicant’s record shows he entered active duty in the Regular Army
on 17 January 1984.  He completed the required training and was awarded the
military occupational specialty (31V10) Tactical Communications Systems
Operator).

4.  The applicant’s Personnel Qualification Record (DA Form 20) shows he
was promoted to the rank of Sergeant First Class (SFC) on 1 June 1989.
Item
35 (Record of Assignments) does not show he served in his duty MOS as a
1SG.

5.  Order Number 61-5, U.S. Total Army Personnel Command (PERSCOM)
(currently Human Resources Command), dated 28 April 1994, shows that the
applicant was promoted to MSG with an effective date of 1 June 1994.

6.  On 9 May 1995, the applicant submitted an Application for Voluntary
Retirement (DA Form 2339) requesting retirement on 31 May 1996.  This
document shows he held the rank of MSG and that this was the highest rank
he attained while serving on active duty.

7.  The applicant’s record contains a DD Form 2656 (Data for Payment of
Retired Personnel) in conjunction with his request for retirement.  This
form shows his rank and pay grade of MSG/E8.

8.  On 31 May 1996, the applicant was released from active duty (REFRAD)
for the purpose of retirement.  At the time, he had completed a total of 20
years, 1 month, and 6 days of active military service and held the rank and
pay grade of
MSG/E-8.

9.  The applicant provides a copy of Orders 132-55, Headquarters, 24th
Infantry Division (Mechanized), Fort Stewart, Georgia, dated 12 May 1995.
It ordered the applicant’s assignment to the U.S. Army Transition Point at
Fort Stewart with a reporting date of 31 May 1996 for the purpose of
retirement/separation.  It also released him from active duty and, on the
date following, placed him on the retired list.  The orders also show his
retired grade of rank as 1SG with an effective date of 31 May 1996,
concurrent with the effective date of his retirement.

10.  Army Regulation 600-200 (Enlisted Personnel Management System)
contains the management policy for Army enlisted soldiers.  Paragraph 2-42,
in effect at the time, was the authority for the lateral appointment of
noncommissioned officers.  It stated, in pertinent part, that a change of
duty for members in the pay grade E-8 required a lateral appointment to or
from MSG or 1SG.

11.  Army Regulation 635-200 (Enlisted Personnel) prescribes the policy and
procedure for the separation of enlisted personnel.  Paragraph 12-17 (Grade
title on retired list of former first sergeants) stipulates that
noncommissioned officers holding the grade of MSG at retirement, whose
records show successful service as a 1SG, will be placed on the retired
list in the grade title, 1SG.  It states, in pertinent part, that the only
criteria for such placement on the retired list is that the soldier must be
serving in and retiring in the grade of MSG, must possess the SQI [special
qualification identifier] “M”, and must have served as a 1SG in the grade
of MSG.


12.  Army Regulation 635-5 (Separation Documents) prescribes the policies
and procedures regarding separation documents which are prepared for
Soldiers upon retirement, discharge, or release from active military
service or control of the Army.  Paragraph 2-8, in effect at the time,
contained the item by item instructions for completing the DD Form 214
separation documents.  It stated for Items 4 (a and b) GRADE, RATE OR RANK
AND PAY GRADE.  Enter the active duty grade or rank and pay grade at the
time of separation.  [emphasis added]

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim that his rank on the DD Form 214 should be 1SG
was carefully considered and found to be without merit.  By regulation, the
rank and pay grade in Item 4a and b on the DD Form 214 will contain the
active duty rank and pay grade at the time of separation.  At that time,
the applicant was holding the rank of MSG and pay grade of E-8 as evidenced
by the documents submitted by him, as well as the documents contained in
his official military personnel files. Therefore, the DD Form 214 correctly
reflects his rank and pay grade at the time of separation.

2.  The applicant provided retirement orders which show his retired grade
of rank as 1SG.  By regulation, noncommissioned officers holding the grade
of MSG at retirement and, whose records show successful service as a 1SG,
will be placed on the retired list in the grade title of 1SG.  Therefore,
the applicant has been appropriately placed on the retired list in the
retired grade of rank of MSG.

3.  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.

4.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 31 May 1996.  Therefore, the time to
file a request for correction of any error or injustice expired on 30 May
1999.  However, he 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

__JCH __  __REB __  __JRM  _  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 C. Hise___
                                      CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050000413                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051220                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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