RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        27 October 2005
      DOCKET NUMBER:  AR20050002163


      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. Yvonne Foskey                 |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Melvin H. Meyer               |     |Chairperson          |
|     |Mr. Allen L. Raub                 |     |Member               |
|     |Ms. Linda D. Simmons              |     |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 Item 4 (Grade, Rate, or Rank)
of his
31 October 1984 separation document (DD Form 214) be corrected to show his
rank and pay grade as Captain/0-3E (CPT/0-3E) vice Master Sergeant/E-8
(MSG/E-8).

2.  The applicant states, in effect, that at the time of his retirement in
1984 there was no error in the MSG/E-8 rank and pay grade listed; however,
he has since been advanced to the rank and pay grade of CPT/0-3 on the
Retired List.  He further states that at the time of his release from
active duty (REFRAD) for retirement, he had not accumulated the required
number of years of active service to be retired at the highest rank he
satisfactorily held while on active duty, which was CPT/0-3E.  He states
that he now has accumulated the required years and requests his retired
rank and pay grade be corrected on his DD Form 214.  He further states that
based on him being rated unemployable and
100 percent disabled, he would now like to have his DD Form 214 corrected
to show his retirement grade as CPT/0-3E, so that his spouse may draw a
pension at the higher pay grade.

3.  The applicant provides a copy of his DD Form 214 and a self-authored
letter in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 31 October 1984.  The application submitted in this case
is dated
31 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's records show he enlisted into the United States Army
National Guard on 16 January 1960, and that he continuously served in that
status until being honorably separated on 13 February 1969.  The highest
rank he held during this enlistment was staff sergeant (SSG).
4.  The applicant's record further shows that on 14 February 1969, he was
appointed a commissioned officer in the United States Army Reserve (USAR)
and entered active duty in that status.  He continuously served on active
duty as a commissioned officer until being honorably separated on 8 October
1975.  The highest rank he held during this period of active duty service
was CPT.

5.  On 9 October 1975, the applicant immediately enlisted in the Regular
Army and entered active duty in an enlisted status, in the rank of SSG. He
continuously served until being honorably REFRAD for the purpose of
voluntary length of service retirement on 31 October 1984.

6.  The applicant’s Personnel Qualification Record (DA Form 2-1) shows, in
Item 18 (Promotions and Reductions), that he was promoted to the rank of
MSG on
11 December 1982, and this is the rank he held on the date of his REFRAD
for retirement.

7.  The applicant’s separation document (DD Form 214) shows he was
honorably REFRAD for the purpose of retirement on 31 October 1984, after
completing a total of 22 years, 10 months, and 27 days of active military
service.  Item 4 (Grade, Rate, or Rank) shows he held the rank and pay
grade of MSG/E-8 on the date of his separation.

8.  On 31 October 1991, the Chief, Retirement Services, St. Louis, Missouri
notified the applicant that he had been advanced to the rank and pay grade
of CPT/0-3E on the Retired List , effective 5 December 1991.

9.  Army Regulation 635-5 (Separations Documents) prescribes the
preparation guidelines for DD Form 214.  It states in pertinent part that
Item 4 (Grade, Rate, or Rank) will reflect the active duty grade or rank
and pay grade at time of separation.

10.  Title 10 of the United States Code, section 3964 provides the legal
authority for advancement of warrant officers and enlisted members on the
Retired List.  It states, in pertinent part, that warrant officer and
enlisted members of the Army are entitled, when their active service plus
their service on the retired list totals 30 years, to be advanced on the
Retired List to the highest grade in which they served on active duty
satisfactorily.
DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to have his DD Form 214 corrected to show his
retirement grade as CPT/0-3E vice MSG/E-8 in order to allow his wife to
receive a pension based on the higher retirement grade was carefully
considered.  However, there is an insufficient evidentiary basis to support
granting the requested relief.

2.  By regulation, the rank and pay grade held on the date of separation
from active duty will be entered in Item 4 of the DD Form 214.  The
evidence of record confirms the applicant held the rank and pay grade of
MSG/E-8 on the date of his REFRAD for retirement.  Therefore, there is no
error in the entry in Item 4 of his DD Form 214.

3.  By law and regulation, in order to be placed on the Retired List at the
highest grade held a Soldier must have 30 years of active service at the
time of retirement.  The law allows for members to be advanced on the
Retired List to the highest grade they held and in which they
satisfactorily served on active duty when their active duty service and
time on the Retired List equals 30 years.

4.  The evidence of record shows that at the time of his retirement, the
applicant only had completed 22 years 10 months and 27 days of active
military service. It further shows that in accordance with the governing
law and regulation, he was appropriately advanced to CPT/0-3E on the
Retired List after his active military service and time on the Retired List
equaled 30 years.

5.  The applicant is advised that the letter authorizing his advancement on
the Retired List may be used to ensure his retired identification (ID) card
and the
ID card of his wife accurately reflect his current retired grade, which is
CPT/0-3E.  Further, since military records accurately reflect his proper
retired grade, resolution of any Department of Veterans Affairs (VA)
pension entitlement should be addressed to and resolved through that
agency.

6.  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.

7.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 31 October 1984, the date of his
REFRAD for retirement.  Therefore, the time for him to file a request for
correction of any error or injustice expired on 30 October 1987.  He failed
to 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

___MHM_  __ALR __  __LDS__  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.




                                  _____Melvin H. Meyer____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050002163                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2005-10-27                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1984/10/31                              |
|DISCHARGE AUTHORITY     |AR635-200 . . . . .                     |
|DISCHARGE REASON        |Retirement                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |131                                     |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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