RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  12 April 2007
	DOCKET NUMBER:  AR20060012871 


	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.


	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 6a (Grade, Rate, or Rank) and Item 6b (Pay Grade) of his DD Form 214 (separation document) be corrected to show his rank and pay grade as captain/0-3 (CPT/0-3) instead of sergeant first class/E-7 (SFC/E-7); and that the Meritorious Service Medal (MSM) he was awarded be added to the list of awards contained in Item 26 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized).  

2.  The applicant states, in effect, that his rank and pay grade was changed from SFC/E-7 to CPT/0-3 on 23 June 1987, and that he was awarded the MSM on 
27 July 1977.

3.  The applicant provides the following documents in support of his application:  Self-Authored Statement; DD Form 214, Department of the Army, United States Army Reserve Personnel Center (ARPERSCEN), St. Louis, Letter, dated 31 July 1987; Certificate of Appreciation; MSM Certificate, dated 27 July 1977; and Headquarters, United States Army Infantry Center (USAIC) Permanent Orders Number 122-4, dated 27 July 1977.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 30 June 1977.  The application submitted in this case is dated 4 September 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 personnel records show that after having prior service in the active and Reserve Component (RC) of the United States Marine Corps, he enlisted and entered active duty in the Regular Army (RA) on 22 June 1961.  He was trained in, awarded and served in military occupational specialty (MOS) 111.60 (Light Weapons Infantryman).


4.  On 27 March 1967, the applicant was honorably released from active duty (REFRAD) to accept a commission.  The DD Form 214 he was issued at that time shows he held the rank and pay grade of staff sergeant/E-6 (SSG/E-6), which he had attained on 25 June 1966, and that he had completed a total of 
9 years , 9 months and 12 days of active military service.

5.  On 27 March 1967, the applicant was appointed a Reserve commissioned officer in the Army and entered active duty.  His specialty number and title was “1542” (Infantry Unit Commander).  His Officer Qualification Record (DA Form 66) confirms, in Item 12 (Appointments), the he was promoted to first lieutenant/0-2 (1LT/0-2) on 27 March 1968 and CPT/0-3 on 27 March 1969. 

6.  On 9 September 1973, the applicant was honorably RERFAD as a commissioned officer by reason of reduction in strength, and on 10 September 1973, he enlisted in the RA as a SSG/E-6 and continued to serve on active duty in an enlisted status.  On 7 December 1974, he was promoted to SFC/E-7.

7.  On 30 June 1976, the applicant was honorably REFRAD for the purpose of voluntary retirement.  The DD Form 214 he was issued at that time shows he completed a total of 20 years and 8 days of active military service.  Items 6a and 6b show he held the rank and pay grade of SFC/E-7.  Item 26 shows he earned the following awards:  National Defense Service Medal; Vietnam Service Medal with 2 bronze service stars; Army Good Conduct Medal; Republican of Vietnam Campaign Medal with Device 1960; Republic of Vietnam Gallantry Cross with Palm Unit Citation; Expert Infantryman Badge; Combat Infantryman Badge; Purple Heart; Armed Forces Expeditionary Medal; Republic of Vietnam Civil Actions Honor Medal with First Class Unit Citation; and 6 Service Stripes.  

8.  The applicant’s military records includes an ARPERSCEN Letter, dated 
31 July 1997, which notified him he was advanced to the grade of CPT/0-3 on the Retired List, effective on 23 June 1987.

9.  The applicant submits Headquarters, USAIC, Permanent Orders Number 
122-4, dated 27 July 1977.  These orders awarded him the MSM for his meritorious service during the period 1 February 1975 to 30 June 1977.

10.  Army Regulation 635-5 (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 also establishes standardized policy for preparing and distributing the DD Form 214.  

11.  Chapter 2 of the separation documents regulation contains preparation instructions for the DD Form 214.  The instructions for Items 6a and 6b state, in effect, that the active duty grade of rank and pay grade held at the time of separation will be entered in these items.  

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 12 sets policies and procedures for voluntary retirement of Soldiers because of length of service.  Paragraph 12-3b states, in pertinent part, that retirement will be in the Regular or Reserve grade the Soldier holds on the date of retirement.  

13.  Paragraph 12-6 (Advancement on the Retired List) contains guidance on the advancement of Soldiers on the Retired List.  It states, in pertinent part, that retired Soldiers are entitled 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 service plus service on the Retired List totals 30 years.  The legal authority for this action is provided by Title 10 of the Untied States Code, section 3964.

14.  Title 10, United States Code, Section 3964, provides that a retired enlisted member or warrant officer 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that Items 6a and 6b, and Item 26 of his final 
DD Form 214 separation should be corrected has been carefully considered and there is sufficient evidence to support granting a portion of the requested relief.  

2.  The applicant provides documents confirming he was awarded the MSM for his meritorious service during the period 1 February 1975 to 30 June 1977, and that this award was properly announced and authorized in permanent orders.  As a result, it would appropriate to add the MSM to the list of awards contained in Item 26 of his 30 June 1977 DD Form 214.  

3.  By regulation, the active duty grade held at the time of separation will be entered on the separation document.  The evidence of record confirms that the applicant held and was serving as an SFC/E-7 at the time of his REFRAD for the purpose of retirement, and that this rank and pay grade is properly recorded in Items 6a and 6b of his final DD Form 214.  

4.  The evidence of record also confirms that the highest grade held by the applicant on active duty, and in which he satisfactorily held was CPT/0-3.  It further shows that he was properly advanced to this grade on the Retired List when his active duty service and time on the Retired List equaled 30 years, as is authorized in the governing law and regulation.  However, although his satisfactory service as a CPT/0-3 supported his advancement on the Retired List, this factor alone does not provide a sufficient evidentiary basis to support changing the rank and pay grade listed in Items 6a and 6b of his final DD Form 214, which were valid entries at the time and which remain valid given it was the rank and pay grade he held on the date of his REFRAD for retirement.  As a result, there is an insufficient evidentiary basis to support granting this portion of the requested relief.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___CG__  __MJF    _  __EEM__  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief and to excuse failure to timely file.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the Meritorious Service Medal to the list of awards contained in Item 26 of his 30 June 1977 DD Form 214; and by issuing him a correction to this separation document that reflects this change.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to correcting Item 6 of his 30 June 1977 DD Form 214.  




_____Curtis Greenway_____
          CHAIRPERSON




INDEX

CASE ID
AR20060012871
SUFFIX

RECON
NO
DATE BOARDED
2007/04/12
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
1977/06/30
DISCHARGE AUTHORITY
AR 635-200
DISCHARGE REASON
Retirement
BOARD DECISION
PARTIAL GRANT
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
100.0000````````````````````
2.

3.

4.

5.

6.