RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  1 November 2007
	DOCKET NUMBER:  AR20060016914 


	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.


Ms. Catherine C. Mitrano

Director

Ms. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Mr. James Anderholm

Chairperson

Mr. Lester Echols

Member

Mr. Jeffrey Redmann

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 he be advanced on the Retired List in the rank and pay grade of sergeant first class (SFC/E-7), effective 22 March 1977.

2.  The applicant states, in effect, that he was approved for advancement to SFC/E-7 on the Retired List, effective 22 March 1977. 

3.  The applicant provides a copy of a letter from the Director, Retired Activities, Reserve Components Personnel and Administration Center (RCPAC), dated 2 February 1977; and an AGUZ Form 658 (Determination of Grade for Retirement, Advancement, Separation or Retirement Pay), dated 16 December 1976, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant entered active duty on 22 March 1947.  He continued to serve through a series of continuous reenlistments.

3.  The applicant was promoted grade 6 (SFC [Sergeant First Class]/E-6) on 16 May 1951 and to grade 7 (M/Sgt [Master Sergeant]/E-7) on 30 September 1951.

4.  On 25 March 1966, he received a special court-martial for writing a check with the intent of defrauding and for the purpose of procuring lawful currency from the Udorn NCO (Noncommissioned Officers) Mess which was not good.  His sentence consisted of a reduction in rank and pay grade to SSG/E-6 and a forfeiture of pay for 4 months.

5.  On 22 August 1966, he received a special court-martial for wrongfully and unlawfully uttering false checks, on twenty-five specifications with the intent of defrauding and for the purpose of procuring of lawful currency.  His sentence consisted of a reduction to pay grade E-4 (suspended for 6 months).

6.  On 24 May 1967, he received a special court-martial for the wrongful appropriation of a radio, of a value of about $156.00, the property of another senior NCO.  His punishment consisted of a forfeiture of pay.

7.  The applicant’s records contain a copy of a DA Form 2339 (Application for Voluntary Retirement), dated 1 March 1967, which shows the applicant’s current grade/pay grade as SSG/E-6 and the highest grade held on active duty as MSG/E-7.  He was separated for the purpose of retirement effective 30 June 1967, in the rank of SSG/E-6.  He was placed on the Retired List on 1 July 1967, in the rank of SSG/E-6.  He had completed 20 years and 2 months of total active service.

8.  On 16 December 1976, a Determination of Grade for Retirement, Advancement, Separation, or Retirement Pay, was prepared on the applicant.  It indicated that the applicant had retired on 1 July 1967 and would complete 30 years of active and inactive service on 21 March 1977.  He was eligible for consideration for advancement on 22 March 1977.  He was approved for advancement on the Retired List to the grade of Msgt/E-7, now SFC/E-7.

9.  On 2 February 1977, the Director Retired Activities, Reserve Component Personnel and Administrative Center (RCPAC), notified the applicant that he had been advanced on the Retired List effective 22 March 1977, to the rank and pay grade of SFC/E-7, the highest active duty grade he had satisfactorily held.  A certificate was provided evidencing this action.

10.  On 11 January 2007, the Retired Pay Operations, DFAS (Defense Finance and Accounting Service) informed the applicant that his request for advancement from E-6 to E-7 presently could not be honored.  Their records did not contain his advancement records.  DFAS requested that he contact the Army Reserve Personnel Center (ARPERCEN) and have them forward his advancement orders to the DFAS. 

11.  On 22 January 2007, the applicant provided the requested documentation to ARPERCEN to show that he was advanced on the Retired List effective 
22 March 1977.  He requested that ARPERCEN forward the documents to DFAS to get the necessary corrections finalized.  

12.  Title 10 United States Code section 3964 provides, in pertinent part, that an enlisted member of the Regular Army who is retired with less than 30 years of active service, is entitled, when his active service plus 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.  Section 3992 of Title 10 United States Code entitles an enlisted member of the Army, who is advanced on the retired list under section 3964, to recomputation of his retired pay based on that advancement. 

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that the applicant served satisfactorily in the pay grade of MSG/E-7 from 30 September 1951 to 27 March 1966.  He was reduced to the rank and pay grade of SSG/E-6 effective 28 March 1966, as a result of special court-martial.

2.  The applicant was separated for the purpose of retirement on 30 June 1967, in the rank and pay grade of SSG/E-6.  He was placed on the Retired List effective 1 July 1967, in the rank and pay grade of SSG/E-6, with the highest grade held on active duty as Msgt/E-7.  He completed 20 years and 2 months of total active service.

3.  A grade determination was approved on 16 December 1976 for the applicant's advancement on the Retired List to Msgt/E-7, now SFC/E-7, after completion of 30 years of active and inactive service on 21 March 1977, to be effective on 22 March 1977.  He was advanced on the Retired List effective 22 March 1977, in the rank and pay grade of SFC/E-7.  A certificate was provided to the applicant to show this action.

4.  After a severely delayed submission of a request for a correction of his pay account and entitlements, the applicant was informed by DFAS that his request could not be honored because their records did not contain his advancement records.  He contacted ARPERCEN and provided that headquarters the specific documentation DFAS had requested to finalize his corrections. 

5.  The evidence shows that the applicant was advanced to the rank and pay grade of SFC/E-7 effective 22 March 1977.  However, he failed to follow up on this retired pay grade determination and likewise failed to make application to this Board within the 3 year statute of limitations.  He applied to this Board approximately 30 years later requesting relief.

6.  Considering the facts and circumstances, it would now be appropriate, as a matter of fairness and equity, to show that he was advanced to the rank and pay grade of SFC/E-7, on the Retired List with an effective date of 22 March 1977 with entitlement to back pay and allowances effective 22 March 1977. 

BOARD VOTE:

___A____  ___e____  _JR ____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the applicant was advanced on the Retired List to the rank and pay grade of SFC/E-7; that he was placed on the Retired List in that rank and pay grade of SFC/E-7 effective 22 March 1977; and providing him back pay and allowances effective 22 March 1977.




____James E. Anderholm__________
          CHAIRPERSON




INDEX

CASE ID
AR20060016914
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20071101
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19670701
DISCHARGE AUTHORITY
AR   USC 3914
DISCHARGE REASON

BOARD DECISION
GRANT
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.