RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  1 November 2005
	DOCKET NUMBER:  AR20050001403


	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. Robert J. McGowan

Analyst

The following members, a quorum, were present:


Mr. James E. Anderholm

Chairperson

Mr. Thomas E. O'Shaughnessy, Jr.

Member

Ms. Carol A. Kornhoff

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 Item 4a (GRADE, RATE, OR RANK) on his DD Form 214 (Certificate of Release or Discharge From Active Duty) be changed from MSG (Master Sergeant) to 1SG (First Sergeant).

2.  The applicant states he completed the 1SG Course at Fort Bliss, Texas and served 2 years as a unit 1SG.  His DD Form 214 should show that he retired as a 1SG.

3.  The applicant provides:

	a.  DA Form 1059 (Service School Academic Evaluation Report) showing successful completion of the US Army First Sergeant Course on 1 April 1997.

	b.  Two DA Forms 2166-7 (NCO Evaluation Report) for the periods 9705-9804 and 9805-9904.  Principle duty title on each report is "First Sergeant."

	c.  DA Form 4187 (Personnel Action) showing his lateral appointment from 1SG to MSG on 19 April 1999.

	d.  Orders 337-8, Headquarters, US Army Garrison, Aberdeen Proving Ground, Aberdeen, Maryland, dated 3 December 1997, awarding him military occupational specialty (MOS) P63B5M [the letter "M" identifies a 1SG].

	e.  DD Form 363A (Certificate of Retirement) showing his rank as First Sergeant.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 30 June 2001.  The application submitted in this case is dated 4 January 2005.

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 served 20 years, 2 months, and 12 days in the Regular Army.  He retired on 30 June 2001.  His DD Form 214 shows his grade, rate, or rank in Item 4a as MSG.  His retirement order shows his grade of rank as "1SG/E-8."

4.  Army Regulation (AR) 635-5 (Personnel Separations – Separation Documents) prescribes the separation documents that must be prepared for soldiers on retirement, discharge, release from active duty service, or control of the Active Army. It establishes standardized policy for preparing and distributing the DD Form 214.  It states, in pertinent part, that Item 4 (GRADE, RATE or RANK) must reflect the active duty grade or rank and pay grade at time of separation, and that such information is obtained from the Enlisted Record Brief/Officer Record Brief.

5.  The applicant's DA Form 2A (Enlisted Record Brief) shows his grade code as MSG.  His DA Form 2-1 (Personnel Qualification Record) shows that he was promoted to E-8 on 1 May 1997 and that he served as a 1SG (E-8) at Aberdeen Proving Ground from May 1997 through April 1999.  He then was laterally appointed as a MSG and assigned as a Project NCO (MSG/E-8) until his retirement on 30 June 2001.

6.  AR 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations) states, in pertinent part, noncommissioned officers holding the grade of MSG at retirement, whose records show successful service as 1SG, will be placed on the retired list [emphasis added] in the grade title, 1SG.  The following are the only criteria for such placement on the retired list:  a. the Soldier must be serving in and retiring in the grade of MSG; b. the Soldier must possess special qualification identifier "M;" c. the Soldier must have served as first sergeant in grade of MSG.  No minimum time period is specified.  Service in the duty action of 1SG while in the grade of Sergeant First Class (SFC/E-7) does not meet this requirement.

DISCUSSION AND CONCLUSIONS:

1.  AR 635-5 is specific about what grade/rate/rank is entered in item 4a of DD Form 214, and where in a Soldier's record the information is obtained.

2.  The applicant's record shows his final assignment was as a Project NCO in the rank of MSG/E-8.  This rank information is correctly entered on his DD Form 214.

3.  There is no error on the applicant's DD Form 214.

4.  It is noted the applicant was placed on the retired list as a "1SG/E-8" as shown on his retirement orders, and that his Certificate of Retirement shows that he is a First Sergeant.

5.  Records show the applicant should have discovered the alleged error now under consideration on 30 April 1994; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 29 April 1997.  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

__jea___  __teo___  __cak___  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
AR20050001403
SUFFIX

RECON

DATE BOARDED
20051101
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
100.0000
2.

3.

4.

5.

6.