RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        18 October 2007
      DOCKET NUMBER:  AR20070004212


      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. Loretta D. Gulley             |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. John Slone                    |     |Chairperson          |
|     |Mr. John T. Meixell               |     |Member               |
|     |Mr. David W. Tucker               |     |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, to be retired in the rank of First
Sergeant (1SG).

2.  The applicant states, in effect that he was told he had to wait 10
years to have his records corrected to show that he served as a 1SG because
he did not serve in that position the 6 months prior to his retirement.

3.  The applicant provides the following documentation in support of his
application:  a copy of his DA Form 2-1 (Personnel Qualification Record), a
copy of Orders Number 09-0290, issued by Headquarters III Corps and Fort,
Hood, Fort Hood, Texas, dated 1 April 1996.

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.  Orders Number 114-12, issued by the United States Total Army Personnel
Command, dated 27 July 1993, promoted the applicant to Master Sergeant
(MSG) with an effective date and date of rank of 1 September 1993.

3.  Orders Number 092-0288, issued by the Headquarters, III Corps and Fort
Hood, Fort Hood, Texas, dated 1 April 1996; show the applicant’s effective
retirement date as 31 January 1997 and his retired grade of rank as MSG.

4.  Orders Number 092-0290, issued by the Headquarters, III Corps and Fort
Hood, Fort Hood, Texas, dated 1 April 1996; shows that the applicant was to
be assigned to the U.S. Army Transition Center, Fort Hood, Texas for
separation processing on 31 January 1997.


5.  The applicant’s DD Form 214 further shows he was honorably retired on
31 January 1997, after completing a total of 20 years and 11 days of active
military service.  Item 4 (Grade, Rate, or Rank) shows that he held the
rank of MSG on the date of his separation.  Item 18 (Remarks) of the
applicant's separation document (DD Form 214) does not show that he was
placed on the "Retired List" as a First Sergeant. Item 11 (Alleged Error or
Injustice) of the applicant’s DD Form 149 (Application for Correction of
Military Record) submitted by the applicant, states that he waited 10 years
to submit his request because he was told“ he had to wait 10 years since he
didn’t serve in a 1SG position the last 6 months prior to his retirement.”

6.  Army Regulation 635-200 prescribes the policy and procedure for the
separation of enlisted personnel.  Paragraph 12-17 (Grade Title on Retired
List of former 1SG) stipulates that noncommissioned officers holding the
grade of MSG at retirement, whose records show successful service as a 1SG
sergeant, will be placed on the Retired List in the grade title, 1SG.  It
states, in pertinent part, that the only criteria for such placement on the
Retired List is that the soldier must be serving in and retiring in the
grade of MSG, must possess the SQI M and must have served as a 1SG in the
grade of MSG/E-8.

7.  Army Regulation 635-5 (Separation Documents) prescribes the separation
documents prepared for Soldiers upon retirement, discharge, or release from
active military service or control of the Army.  It establishes
standardized policy for the preparation of the DD Form 214.  In pertinent
part it states that the DD Form 214 is a synopsis of the Soldier's most
recent period of continuous active duty.  It provides a brief, clear-cut
record of active Army service at the time of release from active duty,
retirement or discharge.

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that Item 4 (Grade, Rate, or Rank) of his DD
Form 214 should show his rank as 1SG vice MSG was carefully considered.

2.  There is no evidence of record that shows the applicant held the rank
of 1SG at the time of his separation.  The applicant states that he was not
in a 1SG position for the last 6 months prior to his retirement.
Instructions for completing DD Form 214, Item 4 (Grade, Rate, or Rank)
states to enter the rank held at the time of separation.  Further
instructions state that in Item 18 (Remarks) section it will show the
"Retired List Grade".  The applicant's DD Form 214 does show that he was
placed on the "Retired List Grade 1SG".  Therefore, the applicant is not
entitled to have his records corrected to show that he retired in the rank
of 1SG.

3.  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

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___JS_ _  ____JTM   ____DWT    DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




                                             _John Slone____
                                            CHAIRPERSON


                                    INDEX

|CASE ID                 |AR20070004212                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2007/10/18                              |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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