IN THE CASE OF:	     

		BOARD DATE:	         17 September 2008  

		DOCKET NUMBER:    AR20080000537 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant, the daughter of a deceased former service member (FSM), requests that her father's records be corrected to show, in effect, that he retired in the rank of sergeant first class (SFC), pay grade E-7.

2.  The applicant states, in effect, that the FSM was promoted to E-7 while serving as a Food Service Supervisor and that he received staff sergeant (SSG), E-6 retired pay when he should have received SFC E-7 retired pay.

3.  The applicant provides the FSM's NGB Form 22 (National Guard Bureau Report of Separation and Record of Service) for the period ending 13 November 1967; his NGB Form 22 for the period ending 27 February 1973; his DA Form 
20 (Enlisted Qualification Record); the FSM's Death Certificate issued on 
6 September 2007; the Daughter's Birth Certificate registered on 4 July 1951; the Daughter's Certificate of Marriage filed on 18 April 1990; the FSM's appointment orders, dated 1 June 1952; and the FSM's Funeral Program.

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 FSM's records are incomplete; however, the available records show that he was born on 30 January 1928.  The FSM's records show he had prior service in the Regular Army during the period 17 April 1946 through 18 February 1949, and also served in the United States Army Reserve (USAR) during the period 19 February 1949 through 31 July 1949.  The FSM's record shows he enlisted in the Army National Guard (ARNG) on 14 August 1949, and was discharged on 11 December 1950, in the rank of corporal/pay grade E-4.  He reenlisted in the Army National Guard on 13 February 1951 and was discharged on 27 January 1956 in the rank of sergeant first class (SFC)/pay grade E-6.  

3.  The FSM's record shows he entered into the USAR on 5 February 1957 and was discharged on 24 July 1963, in the rank of staff sergeant (SSG)/pay grade E-6.

4.  The FSM's record shows he reenlisted in the ARNG on 29 May 1965.  The FSM was discharged from the ARNG on 27 February 1973.  The FSM's NGB Form 22 for the period ending 27 February 1973 shows his grade as “SSG E6” in item 3 (Grade) and item 30 (Highest Grade Held) was "SSG E6."  

5.  Section 1 (Appointments, Promotions, or Reductions) on the FSM's DA Form 20 shows he was promoted to the permanent rank of SSG on 28 February 1972.

6.  The FSM's DD Form 108 (Application for Retired Pay Benefits), undated, shows he entered the USAR on 6 May 1979 and was discharged from the USAR in March 1981.  His DD Form 108 shows his rank and grade as SSG, E6.

7.  Headquarters, Fifth United States Army, Fort Sam Houston, Texas Orders 108-218, dated 4 June 1981, released the FSM from the USAR (Ready) and assigned him to the USAR Control Group (Retired Reserve) on 23 March 1981.  These orders show his rank as "SSG."

8.  The FSM’s DA Form 3713 (Data for Retired Pay), dated 8 February 1988, shows his retired grade and his highest grade attained as E-6.  This document also shows his retired pay would be based on pay grade E-6.

9.  Department of the Army, U.S. Army Reserve Personnel Center Orders Number P-0000470, dated 3 February 1988, retired the FSM and placed him on the retired list on 30 January 1988 in the retired rank of SSG.
10.  A Conversion Chart of Pay Grade of Enlisted Personnel shows that during the period of 1 October 1949 to 31 May 1958 non-commissioned officers in pay grade E-6 would retain the title of SFC or Specialist First (SP1) Class.  After 1 June 1958, non-commissioned officers in pay grade E-6 held the title of SSG in pay grade E-6.

11.  The FSM's death certificate from the State of Iowa shows he died on 5 September 2007.  

12.  The FSM's name is shown on his daughter's birth certificate as her father as registered with the State of Iowa on 4 July 1951.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's father, a FSM, was promoted to SFC on 4 January 1956.  At that time, the equivalent pay grade for a SFC was E-6.

2.  The applicant’s Personnel Qualification Record shows his rank as SSG as of 13 April 1974.

3.  Although the FSM held the rank of SFC, that rank was the equivalent of pay grade E-6.  The Conversion Chart of Pay Grade of Enlisted Personnel shows the title for noncommissioned officers in pay grade E-6 changed from SFC to SSG on 1 June 1958 to present.  

4.  The FSM retired on 30 January 1988 and held the rank and grade of SSG, 
E-6 on the date of his retirement.  

5.  There is no error or injustice in this case regarding the FSM’s retired grade and there is no basis to show he was placed on the retired list in the rank of SFC, E-7 or to pay him SFC, E-7 retired pay.  

BOARD DETERMINATION/RECOMMENDATION:

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.





BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__X____  ____X___  ____X ___  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.




      _______ _   _X______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080000537



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ABCMR Record of Proceedings (cont)                                         AR20080000537



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