RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  8 February 2007
	DOCKET NUMBER:  AR20060009622 


	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



Analyst
      The following members, a quorum, were present:




Chairperson



Member



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, correction to his DD Form 214 (Certificate of Release or Discharge from Active Duty), Blocks 4a and 4b to show MSG (master sergeant)/E8.

2.  The applicant states, in effect, that he has been receiving pay as a MSG/E8 ever since he retired from the military in November 1999.  When he noticed the error, he called Fort Stewart, Georgia, G1 Administration Office, and was advised that he had to wait for 30 years of service to send a letter to the Army Board for Correction of Military Records (ABCMR).  So after waiting six and a half years, he came across a message on the Army Knowledge Online that stated retirees no longer have to wait for a total of 30 years to file their paperwork.  He called the ABCMR and was advised that because he was already advanced on the retirement list as a MSG/E8, he just needed to have corrections made to his DD Form 214 to reflect his retirement rank.

3.  The applicant provided a copy of his promotion orders to master sergeant, his certificate of promotion, his separation orders, his DD Form 214, and his retiree account statement, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 31 October 1999, the date of his separation for the purpose of retirement.  The application submitted in this case is dated 30 June 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's military records show he enlisted in the Regular Army on 17 October 1979.  He was promoted to the rank and pay grade of SFC/E7 (sergeant first class) on 1 January 1992.

4.  On 10 November 1998, the Enlisted Promotions Branch, US Total Army Personnel Command, Alexandria, Virginia, issued Order Number 314-10, promoting the applicant to the rank of master sergeant with an effective date and date of rank of 1 December 1998.  The orders state the promotion was not valid and would be revoked if the Soldier concerned was not in a promotable status on the effective date of promotion.  In addition, these orders stated Soldiers who were promoted automatically incurred a 2-year service obligation prior to voluntary non-disability retirement.  

5.  On 10 November 1998, Headquarters, 3rd infantry Division, Fort Stewart, Georgia, issued Orders Number 314-0030, separating the applicant from active duty for retirement in the retired rank of SFC with a retirement date of 31 October 1999 and placement on the retired list on 1 November 1999.

6.  The applicant submits a copy of a certificate of promotion indicating his rank as MSG with an effective date of 1 December 1998.

7.  The applicant was issued a DD Form 214 honorably separating him from active duty on 31 October 1999 for sufficient service for retirement.  Block 4a. (Grade, Rate or Rank) of the DD Form 214 lists his rank as SFC.  Block 4b. (Pay Grade) lists his pay grade as E7.  Block 12.h. (Effective Date of Pay Grade) lists the effective date pf pay grade as 1 December 1998.

8.  The applicant also submits a copy of Retiree Account Statement, 12 June 2006, listing his rank as MSG.

9.  A staff member of the Army Grade Determination Review Board verified that the applicant had never requested advancement on the Retired List and his rank and pay grade were never advanced on the Retired List.  

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  It states, in pertinent part, that retirement will be in the Regular Army or Reserve grade the soldier holds on the date of retirement, as prescribed in Title 10 of the United States Code, section 3961, which provides the legal authority for retirement grades.  

11.  Title 10, United States Code, Section 3964 provides that each retired member of the Army who is retired with less than 30 years of active service is entitled, when his active service plus his service on the retired list totals 30 years, to be advanced on the retired list to the highest grade in which he served on active duty satisfactorily, as determined by the Secretary of the Army.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to a correction to Blocks 4a and 4b of his DD Form 214.  He has not shown error, injustice, or inequity for the relief he now seeks.  He has provided no evidence showing he satisfactorily held the grade of E8 while he served on active duty prior to his transfer to the retired list.

2.  The applicant's contentions have been noted; however, there is an insufficient evidentiary basis to support granting the requested relief.  By law, in order to be advanced to a higher grade on the Retired List, a member must have satisfactorily served in that higher grade while on active duty as determined by the Secretary of the Army.  

3.  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 SFC/E7 on the date of his release from active duty for retirement.  Therefore, there is no error in the entries in Blocks 4a and 4b of his DD Form 214.  

4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 31 October 1999, the date of release from active duty; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 30 October 2002.  However, 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

__RDG__  ___JCR__  _DKH___  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.




      ______
                CHAIRPERSON




INDEX

CASE ID
AR20060009622
SUFFIX

RECON

DATE BOARDED
20070208
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
131.09
2.

3.

4.

5.

6.



ABCMR Record of Proceedings (cont)                                         AR20060009622


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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508