RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  15 May 2007
	DOCKET NUMBER:  AR20060015101 


	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. John J. Wendland, Jr.

Analyst

The following members, a quorum, were present:


Ms. Yolanda Maldonado

Chairperson

Ms. LaVerne M. Douglas

Member

Mr. Gerald J. Purcell

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 of her records to show she was promoted to the rank of Staff Sergeant (SSG)/pay grade E-6 while serving on active duty and advancement to the grade of SSG/E-6 on the Retired list.

2.  The applicant states, in effect, she never received a copy of her promotion list; however, she found a copy of the promotion list in the back of her finance records.  The applicant also states, in effect, that she is submitting this request to determine if she was supposed to have been promoted and, if so, she requests payment of all back pay.

3.  The applicant provides a copy of page 31, AAC-C10 Report (Recommended List for Promotion of Enlisted Personnel), dated 5 January 1985.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error which occurred on 30 September 1990, the date she retired from active duty.  The application submitted in this case is dated 14 October 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 service records show she enlisted and entered active duty in the Regular Army (RA) for a period of 4 years on 5 June 1966.  Upon completion of basic combat training and advanced individual training, the applicant was awarded military occupational specialty (MOS) 91B (Medical Specialist).  On 4 June 1970, she was honorably released from active duty (REFRAD) and transferred to the U.S. Army Reserve (USAR).  On 14 September 1977, the applicant reentered active duty in the RA and was awarded MOS 94B (Cook).  She later reclassified into MOS 91A (Medical Specialist).  The applicant continuously served on active duty in an enlisted status until being honorably retired from active duty on 30 September 1990 in the rank of Sergeant (SGT)/pay grade E-5.  At the time, the applicant had completed a total of 20 years and
17 days active service.
4.  The applicant's military service records contain a copy of Headquarters,
U.S. Army Signal Center and Fort Gordon, Fort Gordon, Georgia, Orders 233-27, dated 28 November 1979, which show, in pertinent part, that the applicant was promoted to the grade of rank of Specialist Five (SP5)/pay grade E-5, with a date of rank (DOR) of 12 November 1979, effective 1 December 1979.

5.  The applicant’s DA Form 2-1 (Personnel Qualification Record), Item 18 (Appointments and Reductions), shows, in pertinent part, that she was promoted to the grade of SP5 with a DOR of 12 November 1979.  This item also shows that she was laterally appointed to the rank of SGT (E-5) with a DOR of 12 November 1979, effective 1 October 1985.

6.  The applicant's military service records contain a copy of a DA Form 2339 (Application for Voluntary Retirement), dated 4 October 1989.  This document shows in Item 6 (Highest Grade Served on Active Duty and Branch of Service) the entry, "SGT E5  US Army."  Item 19 (Signature of Applicant) and Item 30 (Statement of Understanding) of the DA Form 2339 show that the applicant authenticated the information recorded on this document by placing her signature in both these items.

7.  The applicant's military service records contain a copy of a DA Form 2166-7 (NCO Evaluation Report) covering the period February 1989 through January 1990.  This document shows, in pertinent part, that the applicant was serving in the rank of SGT with a DOR of 12 November 1979.  The DA Form 2166-7, Part II (Authentication), section c, shows the applicant authenticated the document by placing her signature and the date (i.e., 28 February 1990) on the form.

8.  The applicant's military service records contain a copy of a DA Form 31 (Request and Authority for Leave), dated 2 July 1990.  This document shows that in conjunction with her retirement from active duty, the applicant requested terminal leave for the period 3 August 1990 through 1 October 1990.  Item 3 (Pay Grade) of the DA Form 31 shows the entry "E-5."  This document also shows, in pertinent part, that the applicant authenticated this document by placing her signature in Item 14 (Signature of Requestor).

9.  The applicant's military service records contain a copy of Headquarters,
U.S. Army Training Center and Fort Jackson, Fort Jackson, South Carolina, Orders 191-20, dated 4 October 1989.  These orders show, in pertinent part, that the applicant was REFRAD on 30 September 1990 and placed on the Retired list in the grade of SGT (E-5), effective 1 October 1990.

10.  The applicant’s DD Form 214 shows she was honorably retired from active duty on 30 September 1990.  Item 4a (Grade, Rate or Rank) and Item 4b (Pay Grade) show she held the rank and pay grade of SGT/E-5 on the date she was retired from active duty.  Item 12 (Record of Service), block h (Effective Date of Pay Grade) contains the entry, "79 12 01" (i.e., 1 December 1979).

11.  The applicant's military service records are absent any orders or other evidence that she was promoted to the rank of SSG (E-6) while serving on active duty or that she served on active duty in the rank of SSG (E-6).

12.  The applicant's military service records contain a DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552), dated 21 February 2000, which shows that the applicant requested "to be considered for advancement to next higher grade."  Her records also contain a copy of Headquarters, Board for Correction of Military Records, Arlington, Virginia, memorandum, dated 28 June 2000, which shows, in pertinent part, that the applicant was informed that a review of her official military personnel records revealed no orders promoting her to a higher grade and that she was retired in the highest grade to which she was ever promoted while on active duty.  This document also shows that, "[i]nasmuch as your official military records show that you were retired in the highest grade to which you were ever promoted while on active duty, no effective relief can be granted by the Army Grade Determination Review Board or the Army Board for Correction of Military Records."

13.  In support of her application, the applicant provides a copy of page 31 of an AAC-C10 Report (Recommended List for Promotion of Enlisted Personnel), dated 5 January 1985.  This document shows, in pertinent part, that the applicant was recommended (emphasis added) for promotion to pay grade E-6 in MOS 91B3O, had earned 845 promotion points in February 1984, and 849 promotion points in August 1984.

14.  Title 10 of the United States Code, Section 3961 (10 USC 3961), provides the legal authority for the retired grade of Army personnel on the Retired list.  It states, in pertinent part, that unless entitled to a higher retired grade under some other provision of law, a Regular or Reserve of the Army who retires other than for physical disability retires in the regular or reserve grade that he or she holds on the date of his or her retirement.

15.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time the applicant retired from active duty, provided the authority for the separation of Soldiers from the Active Army.  Chapter 12 (Retirement), paragraph 12-3 (General provisions of laws governing retirement), provided, in pertinent part, that retirement will be in the regular or reserve grade the member holds on the date of retirement (10 USC 3961).

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

17.  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 officers 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.

18.  Army Regulation 635-200, paragraph 12-6 (Advancement on the retired list), provided, in pertinent part, that members with less than 30 years of active Federal service are considered for advancement on the Retired list if active duty plus service on the Retired list equals 30 years.  They can be advanced to the grade equal to the highest grade (permanent or temporary) in which they served on active duty as determined by the Secretary of the Army.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that her records should be corrected to show that she was promoted to the rank of SSG (E-6) prior to her retirement from active duty, advancement on the Retired list to the grade of SSG (E-6), and payment of all back pay due as a result of the corrections.  The applicant's request was carefully considered; however, there is an insufficient evidentiary basis to support granting the requested relief.

2.  The evidence of record shows that the applicant was placed on the Recommended List for Promotion to Pay Grade E-6; however, there is no evidence that the applicant met the promotion point cut-off score for MOS 91B3O in order to qualify her for promotion to SSG (E-6).  Moreover, there is no evidence of record, and the applicant fails to provide sufficient documentary evidence, that shows she was promoted to the grade of SSG (E-6) while serving on active duty or that she served on active duty in the grade of SSG (E-6).


3.  The evidence of record shows that the highest grade the applicant held while serving on active duty was SGT (E-5); that she served satisfactorily on active duty in the grade of SGT (E-5); and completed 20 years and 17 days of total active service at the time of her retirement on 30 September 1990.  The evidence of record also shows that on several occasions (over the course of the 1-year period prior to being retired from active duty) the applicant authenticated several official documents and confirmed her grade was that of SGT (E-5) and that it was the highest grade she held while serving on active duty.

4.  By regulation, the rank and pay grade held on the date of separation from active duty will be entered in Item 4a and Item 4b of the DD Form 214.  The evidence of record confirms the applicant held the rank and pay grade of SGT/E-5 on the date she retired from active duty.  Thus, there is no error with respect to the entries in Item 4a, Item 4b, or Item 12h of her DD Form 214 and the retired grade in which the applicant was placed on the Retired list is correct.  Therefore, the applicant is not entitled to correction of her records or payment of any back pay.

5.  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 plus time on the Retired list equals 30 years.  

6.  The evidence of record shows that the applicant's active duty service plus time on the Retired list equaled 30 years on 13 September 2000.  However, there is no evidence of record showing that the applicant was promoted to the grade of SSG (E-6) and served on active duty satisfactorily in the grade of SSG (E-6). Therefore, the applicant is also not entitled to advancement to SSG (E-6) on the Retired list or payment of any back pay.

7.  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.

8.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 30 September 1990; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
29 September 1993.  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

___YM___  ___LMD_  ____GJP   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.




____Yolanda Maldonado____
          CHAIRPERSON




INDEX

CASE ID
AR20060015101
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/05/15
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19900930
DISCHARGE AUTHORITY
AR 635-200, Chapter 12
DISCHARGE REASON
Retirement for Length of Service
BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
129.0400.0000
2.

3.

4.

5.

6.