RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  20 September 2007
	DOCKET NUMBER:  AR20070005930 


	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

Mr. Dean L. Turnbull

Analyst

The following members, a quorum, were present:


Mr. Jeffrey C. Redmann

Chairperson

Mr. Dean A. Camarella

Member

Mr. Qawiy A. Sabree

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 to the highest grade he held, master sergeant (MSG), E-8.

2.  The applicant states, in effect, that he would like to be advanced on the retired list to the highest grade he satisfactorily held while on active duty under the provisions of title 10, section 3964, of the United States Code.

3.  He states although he retired on 1 April 1997 in the grade of E-7, he had previously held the grade of E-8 while on active duty.  He states according to his calculation he has a total of 30 years active federal service which include his service on the retired list.  He would like to have the advancement to pay grade E-8, because it is very important to him to show that he had achieved his goal to serve in pay grade E-8.

4.  The applicant provides a copy of a congratulatory note, dated 11 May  
1994 from his commander that congratulated him on his selection for promotion to the rank of MSG.

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's military records show that he entered active duty on 27 April 1979.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty (MOS) 62M1O (Loader Operator).  His military records further show he was awarded the MOS  
45K1O (Tank Turret Repairer).  He was promoted to the grade of E-7 on  
1 October 1990.

3.  The U.S. Total Army Personnel Command Order Number 346-11, dated  
11 December 1996 shows that the applicant was promoted to the rank of MSG effective 1 January 1997 and that promotion is not valid and would be revoked if the Soldier was not in a promotable status on the effective date of promotion.  It further stated that Soldiers who are promoted automatically incur a 2-year service obligation prior to voluntary non-disability retirement.

4.  On 1 January 1997, the applicant submitted his request for voluntary retirement for a requested retirement date of 1 April 1997.  The DA Form 2339 (Application for Voluntary Retirement) he submitted shows that he signed the application on 6 January 1997.

5.  On 31 January 1997, the U.S. Total Army Personnel Command memorandum with the subject:  Application for Voluntary Retirement shows that his request for retirement was approved for retirement on 1 April 1997.

6.  He was honorably released from active duty on 31 March 1997 and placed on the retired list effective 1 April 1997.  The DD Form 214 he was issued shows that he had completed 20 years, 8 months, and 29 days of active service.

7.  According to his records he may have been frocked as a first sergeant while in the pay grade E-7, but he was not promoted to the grade of E-8 until  
1 January 1997.

8.  His records show that his expiration term of service was 8 June 1997, which means he did not have sufficient time in service remaining to meet his 2-year service remaining obligation for promotion.  Therefore, he would have had to reenlist/extend his enlistment or decline promotion.  His records do not contain a copy of a reenlistment/extension contract or a declination statement.

9.  Army Regulation 635-200 (Enlisted personnel) sets forth the basic authority for the separation of enlisted personnel.  Chapter 12 states that Soldiers who have an approved retirement are in a nonpromotable status and will not be promoted unless a request for withdrawal of their retirement application has been approved.  Soldiers who are promoted to grades E-7, E-8, or E-9 incur a 2-year service obligation.  This obligation will be from the effective date of promotion.  It must be completed before voluntary retirement.  Paragraph 12-17 (Grade title on retired list of former first sergeants) states, in pertinent part, that a Soldier must have served as first sergeant in pay grade of MSG/E-8.  No minimum time period is specified; however, service in the duty position of first sergeant while in pay grade E-7 does not meet the requirement.

10.  Title 10, U. S. Code, section 3964 provides that warrant officers and enlisted members may, when their active service plus their service on the retired list totals 30 years, be advanced on the retired list to the highest grade in which they served on active duty satisfactorily.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests to be advanced on the retired list to the highest grade he held, pay grade E-8.

2.  On 1 January 1997, the applicant was promoted to grade E-8.  Upon promotion to E-8 the applicant incurred a 2-year service obligation.  Evidence shows that the applicant's expiration date was 8 June 1997.  Therefore, he did not have sufficient time in service remaining to meet his 2-year service obligation for promotion.  He then requested voluntary retirement on 6 January 1997.  That request was approved for release from active duty on 31 March 1997 and placement on the retired list on 1 April 1997 in the grade of E-7.

3.  The applicant’s claims that he previously held the grade of E-8 and satisfactorily served as an E-8 while on active duty is noted.  However, advancement on the retired list can only be considered when a Soldier served in a higher grade that would have qualified him for retirement, receipt of retired pay, or separation for physical disability in that grade.  Since the applicant did not take the necessary actions to meet his incurred 2-year service remaining requirement for promotion, his promotion was determined not to be valid.  Additionally, in accordance with regulatory requirement, Soldiers who have an approved retirement are in a nonpromotable status and will not be promoted unless a request for withdrawal of their retirement application has been approved.  Therefore, it is not appropriate to consider him for advancement on the retired list to the grade of E-8.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___qas__  ____dac_  ___jcr ___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to our Nation.  The applicant and all Americans should be justifiably proud of his service in arms.




_________Jeffrey C. Redmann______
          CHAIRPERSON




INDEX

CASE ID
AR20070005930
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070920
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.