RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        6 February 2007
      DOCKET NUMBER:  AR20060013430


      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. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. James E. Anderholm            |     |Chairperson          |
|     |Mr. Jerome L. Pionk               |     |Member               |
|     |Mr. Edward E. Montgomery          |     |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, automatic promotion to command
sergeant major (CSM).

2.  The applicant states, in effect, that many of his fellow sergeants
major (SGMs) were automatically promoted to CSM after retirement without
having to apply for advancement in grade.  He states it is his belief that
he was qualified to advance to CSM because he held a CSM position as an E-8
at Fort Ord, California, as the acting CSM of a training battalion.

3.  The applicant provides no additional documentary evidence in support of
his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice
that occurred on 31 January 1977, the date of his release from active duty
(REFRAD) for retirement.  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 record shows that on 31 January 1977, he was honorably
REFRAD for the purpose of retirement after completing a total of 20 years
and
9 days of active military service.

4.  The applicant’s Personnel Qualification Record (DA Form 2-1) indicates,
in Item 18 (Appointments and Reductions), that he was promoted to the rank
of Sergeant Major (SGM) and pay grade of E-9 on 20 January 1976.  There is
no entry in this item that indicates that he was ever laterally appointed
to the rank of CSM.  Item 35 (Record of Assignments) of the applicant's DA
Form 2-1 shows that subsequent to his promotion to SGM, he served as the
Chief Instructor of the Reserve Officer Training Corps (ROTC) at the
University of Minnesota, Minneapolis, Minnesota, from 1 December 1975
through his retirement on
31 January 1977.
5.  Item 38 (Record of Assignments) of the applicant's Enlistment
Qualification Record (DA Form 20) shows that while he was assigned to Fort
Ord, California, from 20 April 1972 through 8 May 1974, he served as the
First Sergeant of Headquarters and Headquarters Company, 2nd Battalion, 1st
Brigade and as the Noncommissioned Officer In Charge (NCOIC) of Outdoor
Recreation.  There is no indication that he was ever assigned to a CSM
position at Fort Ord.

6.  The applicant's Military Personnel Records Jacket (MPRJ) contains no
indication that he was ever selected for CSM by a properly constituted
Department of the Army (DA) selection board, or that he was ever laterally
appointed to the rank of CSM by proper authority while serving on active
duty.

7.  Headquarters, 9th Infantry Division and Fort Lewis, Fort Lewis,
Washington, Orders Number 39-773 authorized the applicant's REFRAD for the
purpose of retirement on 31 January 1977, and his placement on the Retired
List on
1 February 1977.  The order also indicated his authorized retired grade was
SGM.

8.  A Data for Retired Pay (DA Form 3713) on file, dated 24 August 1976,
which was prepared during the applicant's retirement processing shows his
active duty grade, retired grade, and the highest grade he ever held were
all SGM.

9.  The separation document (DD Form 214) issued to the applicant on the
date of his REFRAD for the purpose of retirement contains the entry SGM in
Item 6a (Grade, Rate, or Rank), which indicates he held that rank title on
the
date of his separation.  The applicant authenticated this document with his
signature in Item 29 (Signature of Person Being Separated).

10.  The CSM program was authorized in 1967 and the first selections into
the program were selected by a board that adjourned on 29 December 1967.
The selection results for the first CSM program selections were announced
in Department of the Army (DA) Circular 611-31, dated 8 January 1968.  Of
the
214 nominees for the program, 196 were selected.  Subsequent selection
boards were scheduled for March and July 1968.  Since the inception of the
program, selection into the CSM program was accomplished through a DA
selection board. There are no provisions for automatic promotion or
advancement to CSM.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his retired rank title should be
changed from SGM to CSM was carefully considered.  However, his record is
void of any indication that he was ever selected for entrance into the CSM
program by a properly constituted DA selection board, which is necessary to
support a lateral appointment from SGM to CSM at the time, or that he was
ever laterally appointed to CSM by proper authority while serving on active
duty.  There are no regulatory provisions that allow for automatic
advancement to CSM for completion of a given number of years, or for any
other reason.

2.  The evidence of record confirms the applicant was processed for
retirement and placed on the Retired List with the rank title of SGM and
not CSM.  This fact is further supported by the rank and pay grade entries
contained in all documents and orders published on him during his
retirement processing.  This includes a Data for Retired Pay Form, which
should have been the source document used by finance to establish his
retired pay record, and his DD Form 214, which he authenticated with his
signature on the date of his separation.  In effect, his signature was his
verification that the information contained on the separation document, to
include his rank title, was correct at the time the DD Form 214 was
prepared and issued.

3.  The applicant is advised that the veracity of his claim that he served
as a CSM is not in question.  However, performing duties in a CSM position
alone did not support a lateral appointment to that rank.  Lacking any
evidence of record that shows he was selected for entrance into the CSM
program by a properly constituted DA selection board and/or that he was
appointed a CSM by proper authority prior to his REFRAD, there is an
insufficient evidentiary basis to support a change to his retired rank
title at this late date.  Therefore, his request must be denied in the
interest of all those who served in the same timeframe and who faced
similar circumstances.

4.  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.

5.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 31 January 1977, the date of his
REFRAD, 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
January 1980.  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

__JEA __  __JLP ___  __EEM__  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                 |AR20060013430                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/02/06                              |
|TYPE OF DISCHARGE       |HD                                      |
|DATE OF DISCHARGE       |1977/01/31                              |
|DISCHARGE AUTHORITY     |AR 635-200 C12                          |
|DISCHARGE REASON        |Retirement                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  319  |131.0900                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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