RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 1 May 2007
DOCKET NUMBER: AR20070000101
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. Michael L. Engle
Analyst
The following members, a quorum, were present:
Mr. Paul M. Smith
Chairperson
Mr. David K. Haasenritter
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 correction of his military records to show that he was advanced on the Retired List to first sergeant, pay grade E8.
2. The applicant states that he served satisfactorily as a first sergeant prior to his retirement as a sergeant first class, pay grade E7.
3. The applicant provides no additional documentation in support of his request.
CONSIDERATION OF EVIDENCE:
1. The applicant is requesting correction of an alleged error or injustice which occurred on 30 September 1988, the date of his retirement for length of service. The application submitted in this case is dated 19 December 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 applicants failure to timely file.
3. On 30 September 1968, the applicant enlisted in the Regular Army for
3 years. He completed his initial training and continued to serve on active duty through a series of reenlistments until his retirement for length of service on
30 September 1988. He attained the rank of sergeant first class, pay grade
E7 and had completed 20 years and 1 day of creditable active duty.
4. On 5 August 1982, the applicant was promoted to sergeant first class, pay grade E7.
5. From January to May 1988, the applicant served as the First Sergeant for Headquarters and Headquarters Company, 2nd Battalion, 5th Cavalry Regiment. His Noncommissioned Officer Evaluation Report (NCOER) shows that his rank at this time was sergeant first class, pay grade E7.
6. 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 l0 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 of record clearly shows that the applicant's highest pay grade while on active duty was E7. He did serve as a first sergeant, but was never promoted to this rank and never received pay for grade E8.
2. Therefore, the applicant's request for advancement on the Retired List, based on his duty performance as a first sergeant, should not be granted.
3. Records show the applicant should have discovered the alleged error or injustice now under consideration on 30 September 1988; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
29 September 1991. 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
__PMS__ __EEM__ ___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.
_ Paul M. Smith______
CHAIRPERSON
INDEX
CASE ID
AR20070000101
SUFFIX
RECON
DATE BOARDED
20070501
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
AR . . . . .
DISCHARGE REASON
BOARD DECISION
DENY
REVIEW AUTHORITY
ISSUES 1.
129.0400
2.
3.
4.
5.
6.
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