RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  8 March 2007
	DOCKET NUMBER:  AR20060009585 


	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. Gerard W. Schwartz

Acting Director

Mr. Michael J. Fowler

Analyst

The following members, a quorum, were present:


Mr. William F. Crain

Chairperson

Mr. Edward Montgomery

Member

Ms. Rea M. Nuppenau

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 military records be corrected to show he was promoted to First Sergeant (1SG)/E-8.

2.  The applicant states, in effect, that his promotion orders were overlooked and never cut for his promotion from Sergeant First Class (SFC)/E-7 to 1SG.  He states that he served in a 1SG position for more than a year and met the regulatory requirements for promotion to 1SG at the time.  The applicant further states that he was told by clerical personnel at U.S. Army Human Resources Command - St. Louis, Missouri (USAHRC-STL), that he could apply until after ten years from retirement for correction of his rank.  

3.  The applicant provides a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with the ending period 7 September 1956; a DA Form 20 (Enlisted Qualification Record); a 6AA Form 467 (U.S. Army Reserve Personnel Request for Assignment or Attachment), dated 19 October 1973; a DA Form 873 (Certificate of Clearance and/or Security Determination), dated 22 July 1971; Headquarters, 1394th U.S. Army Holding and Reconsignment Point Special Orders Number 17, dated 10 May 1972; 282nd Engineer Company (Water Supply) Unit Orders Number 4, dated 8 May 1972; an Army of the U.S. Retired Reserve certificate, dated 9 January 1974; and a Certificate of Retirement from the U.S. Army, dated June 1996.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 
9 January 1974.  The application submitted in this case is dated 1 July 2006.

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 enlisted in the Regular Army on 8 September 1953 and successfully completed basic training and advanced individual training.  He was awarded specialty number and title 140.00 (Field Artillery Crewman).  On 
7 September 1956, the applicant was honorably released from active duty in the rank of Specialist Third Class (SP3), pay grade E-4 and was transferred to the U.S. Army Reserve (USAR).  

4.  Item 33 of the applicant's a DA Form 20 shows that he was promoted to the rank of SFC on 4 September 1962.  

5.  282nd Engineer Company (Water Supply) Unit Orders Number 4, dated 
8 May 1972, shows that the applicant was assigned to the company 1SG position and the standard name line on the orders show his rank as SFC.

6.  Item 38 of the applicant's DA Form 20 shows that he served in the 1SG position for the 282nd Engineer Company (Water Supply) from on or about 
3 March 1972 to on or about 19 September 1972.

7.  On 9 January 1974, the applicant was transferred to the U.S. Army Reserve Control Group (Retired).  His Army of the U.S. Retired Reserve certificate dated 9 January 1974 shows his rank as SFC.  

8.  There are no documents that show the applicant's commander prepared a promotion packet that recommended the applicant for promotion to the grade of 1SG/E-8.  There are no special orders in the applicant's service personnel records promoting him to 1SG/E-8 while he was in the USAR.  

9.  Item 18 (Appointments and Reductions) of the applicant’s DA Form 2-1 (Personnel Qualification Record) does not show the applicant was promoted to the rank of 1SG/E-8.  

10.  In the processing of this case, an advisory opinion was obtained from the Promotion Branch, USAHRC-STL.  That office stated that the applicant stated that he was informed by clerical personnel that he must wait 10 years after retirement before submitting a request to correct his retired grade.  The advisory opinion stated "The Soldier's record indicates he performed the duties of a First Sergeant, from 3 March 1972 until 27 August 1972, but there is no documentary evidence to reflect his promotion to E-8/MSG.  Soldiers must first be promoted to E-8/MSG, and then, if eligible, be selected to lateral appointment to First Sergeant."  Copy of the advisory opinion was provided to the applicant for comment or rebuttal.

11.  In his Rebuttal for Correction of Military Records, the applicant stated in part that in March 1972 he was assigned as the 1SG for the 282nd Engineer Company and in May 1972 he was awarded duty military occupational specialty (MOS) 51N (Water Treatment Specialist) for the duty position of 1SG.  He further states that despite his rank of SFC/E-7, he was not an acting 1SG.  He stated that he was a primary duty 1SG, serving in a previously open 1SG slot.

12.  The applicant stated that he was fully qualified and met all the regulatory requirements at that time for promotion and served as 1SG for more than six months.

13.  Army Regulation 140-158 (Enlisted Personnel Classification, Promotion and Reduction) chapter 3 of the version in effect at the time, governed policy and criteria concerning promotion to pay grades E-5 through E-8 and the selection board process.  It stated that only board members will select Soldiers as "best qualified" for promotion and fully qualified Soldiers recommended by the immediate commander will be referred to the board.  The board would consist of both officers and enlisted appointed by the appropriate promotion authority to select individuals for promotion to pay grades E-7 through E-9.  A list of the individuals recommended by the board and selected by the promotion authority, in the order they were to be promoted, would be published.  Colonel/O-6 commanders would be the promotion convening authority for E-7 and E-8. 

14.  Title 10, U. S. Code, section 3963(a) states a Reserve enlisted member of the Army described in subsection (b) who is retired under section 3914 of this Title shall be retired in the highest enlisted grade in which the member served on active duty satisfactorily, as determined by the Secretary of the Army.  Subsection 3963(b) states this section applies to a Reserve enlisted member who (1) at the time of retirement is serving on active duty in a grade lower than the highest enlisted grade held by the member while on active duty; and (2) was previously administratively reduced in grade not as a result of the member’s own misconduct, as determined by the Secretary of the Army.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he served in a 1SG position and that his promotion orders were never issued for promotion to 1SG.  Although it is acknowledged that the applicant served in a 1SG position for seven months, there is no evidence that the applicant's commander recommended him for promotion to 1SG/E-8.  In addition, there is no evidence he was recommended by a promotion board and no evidence to show he was selected by the promotion authority for promotion to E-8. 

2.  Since the applicant never held the rank and grade of 1SG/E-8 (he only served in a 1SG position), he is not entitled to advancement to E-8 on the retired list.

3.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 9 January 1974; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
8 January 1977.  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

__WFC__  __EM___  ___RMN_  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.




__     _William F. Crain     _
          CHAIRPERSON





INDEX

CASE ID
AR20060009585
SUFFIX

RECON

DATE BOARDED
8 MARCH 2007
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
MR. SHWARTZ
ISSUES         1.
129.0500.0000
2.

3.

4.

5.

6.