IN THE CASE OF:	

	BOARD DATE:	  

	DOCKET NUMBER:  AR20080005745 


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 requests, in effect, correction of his records to show he served on active duty in the rank of Sergeant Major (SGM)/pay grade E-9 and that he was advanced to the grade of SGM (E-9) on the Retired list.

2.  The applicant states, in effect, he was reassigned from Headquarters, U.S. Army Europe (USAREUR) to Headquarters, Continental Army Command (CONARC), Fort Monroe, Virginia, on 23 August 1963.  He was further assigned to the Office of the Deputy Chief of Staff for Intelligence (DCSINTEL) and served as Intelligence Chief, Plans Branch; Plans, Operations, and Training Division.  The applicant states that this was an SGM position and he served in the position from 23 August 1963 to 30 November 1965.  However, since there was an SGM already serving elsewhere in the Office of the DCSINTEL, he was not able to be promoted to that grade.  The applicant adds he was unaware his records could be adjusted until he recently read about it in early March 2008 in an old copy of Army Echoes (Issue 3, 1999).

3.  The applicant provides a self-authored statement; NAVCG-553 (Notice of Separation from the U.S. Naval Service - Coast Guard), with an effective date of 24 October 1945; Headquarters, United States Continental Army Command, Fort Monroe, Virginia, Army Commendation Medal Citation; and a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), with an effective date of 30 November 1965.


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 service records show he enlisted in the U.S. Coast Guard and entered active duty on 9 January 1942.  He completed the Motor Machinist Mate course and served outside the continental limits of the United States for a period of 2 years and 5 days.  He was honorably separated by reason of eligibility under the Point System on 24 October 1945.

3.  The applicant enlisted and entered active duty in the Regular Army (RA) on 30 December 1948.  Upon completion of basic combat training and advanced individual training, he was awarded military occupational specialty (MOS) 623.10 (Diesel Mechanic).  He subsequently reclassified into MOS 962.10 (Intelligence Analyst).

4.  The applicant’s military service records contain a copy of Headquarters, Fort Monroe, Fort Monroe, Virginia, Special Orders Number 237, dated 21 November 1963, that show, in pertinent part, the applicant was appointed to the temporary grade of Master Sergeant (MSG)/pay grade E-8, in MOS 962.80, effective and with a date of rank (DOR) of 21 November 1963.

5.  The applicant’s military service records contain a DA Form 20 (Enlisted Qualification Record).  Item 33 (Appointments and Reductions) shows, in pertinent part, that Headquarters, Fort Monroe, Virginia, Special Orders Number 237, appointed the applicant in the grade of MSG/E-8 (Temporary) with a DOR of 21 November 1963.  Item 38 (Record of Assignments) shows, in pertinent part, that he served in Duty MOS 962.90, Intelligence Chief, while assigned to Headquarters, CONARC (2500) (Enlisted), Fort Monroe, Virginia, from 23 August 1963 through 29 November 1965.  Item 47 (Signature of Individual) shows that the applicant reviewed and audited the information recorded on the DA Form 20 on 3 June 1965 and he placed his signature on the document followed by “MSgt.”

6.  The applicant's military service records contain a copy of a DA Form 2339 (Application for Voluntary Retirement), dated 8 June 1965.  This document shows in Item 4 (Current Grade, Pay Grade, Date of Rank and MOS) the entry “MSgt E-8 21 Nov 63 96B5O” and Item 11 (Highest Grade Served on Active Duty) contains the entry "E-8.”  The block titled “Signature of Applicant” of the
DA Form 2339 shows that the applicant authenticated the information recorded on this document by placing his signature in this item.

7.  The applicant's military service records contain a copy of Headquarters,
Department of the Army, Washington, District of Columbia, Special Orders Number 214, dated 11 August 1965.  These orders show that the applicant was released from active duty in the grade of MSG/E-8, on 30 November 1965, and placed on the Retired list, effective 1 December 1965.  The orders contain the lead line:  “Grade to Which Advanced and SN [Service Number]:” and shows the entry “NA.”  The orders were promulgated by order of the Secretary of the Army and under the signature block of H_____ K. J_______, General, United States Army, Chief of Staff.

8.  The applicant’s military service records contain a DD Form 214, with an effective date of 30 November 1965.  This document shows the applicant was honorably retired from active duty after completing 6 years, 3 months, and 1 day net service this period; 14 years, 5 months, and 16 days other service; and
20 years, 8 months, and 17 days total active service.  Item 3a (Grade, Rate or Rank) shows he held the rank and pay grade of MSG (E-8) on the date he retired from active duty and Item 3b (Date of Rank) shows his DOR was 21 November 1963.  Item 32 (Remarks), in pertinent part, contains the entry “Item 3a: EM Apt MSG E-8 (P) 21 Nov 65.”  Item 34 (Signature of Person Being Transferred or Discharged) shows that the applicant authenticated the DD Form 214 with his signature on the date of his separation.

9.  The applicant's military service records are absent any orders or other evidence that he was appointed, advanced, or promoted to the grade of rank of SGM or that he served on active duty in the rank of SGM.  In addition, there is no evidence of record that shows the applicant was advanced to the grade of SGM on the Retired list.

10.  In support of his application, the applicant provides the following documents.

     a.  NAVCG-553, with an effective date of 24 October 1945, that documents the applicant’s period of honorable active duty service in the U.S. Coast Guard from 9 January 1942 through 24 October 1945;

     b.  Headquarters, United States Continental Army Command, Fort Monroe, Virginia, Army Commendation Medal Citation, that shows, in pertinent part, that Master Sergeant (E-8) R_____ W. H_____, U.S. Army, distinguished himself by exceptionally meritorious service as Intelligence Chief, Plans Branch; Plans, Operations, and Training Division, Office, Deputy Chief of Staff for Intelligence, Headquarters, United States Continental Army Command, Fort Monroe, Virginia, from 23 August 1963 to 30 November 1965; and

     c.  DD Form 214, with an effective date of 30 November 1965, that was previously introduced and considered in this Record of Proceedings.

11.  Title 10 of the United States Code, section 3961 (10 USC 3961), provides the legal authority for the retired grade of Army personnel on the Retired list.  It states, in pertinent part, that unless entitled to a higher retired grade under some other provision of law, a Regular or Reserve of the Army who retires other than for physical disability retires in the regular or reserve grade that he or she holds on the date of his or her retirement.

12.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time the applicant retired from active duty, provided the authority for the separation of Soldiers from the Active Army.  Chapter 12 (Retirement), paragraph 12-3 (General provisions of laws governing retirement), provided, in pertinent part, that retirement will be in the regular or reserve grade the member holds on the date of retirement (10 USC 3961).

13.  Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time of the applicant's separation from active duty, prescribed policies and procedures regarding separation documents.  It also established standardized policy for preparing and distributing the DD Form 214.  Section III (Instructions for Preparation and Distribution of the Armed Forces of the United States Report of Transfer or Discharge) contains guidance on the preparation of the DD Form 214.  It states, in pertinent part, that all available records will be used as a basis for the preparation of the DD Form 214, including the Enlisted Qualification Record, Officer Qualification Record, and orders.  It states, in pertinent part, that Item 3a (Grade, Rate or Rank) will reflect the active duty grade or rank and pay grade at time of separation.

14.  Title 10 of the United States Code, section 3964, provides the legal authority for advancement of warrant officers and enlisted members on the Retired list.  It states, in pertinent part, that warrant officers and enlisted members of the Army are entitled, when their active service plus their service on the Retired list totals
30 years, to be advanced on the Retired list to the highest grade in which they served on active duty satisfactorily.
15.  Army Regulation 635-200, paragraph 12-6 (Advancement on the Retired list), in pertinent part, provides that members with less than 30 years of active Federal service are considered for advancement on the Retired list if active duty plus service on the Retired list equals 30 years.  They can be advanced to the grade equal to the highest grade (permanent or temporary) in which they served on active duty as determined by the Secretary of the Army.
 
DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his records should be corrected to show he served on active duty in the grade of SGM (E-9) from 23 August 1963 through 30 November 1965 and that he was advanced to the grade of SGM (E-9) on the Retired list, effective 14 March 1975.

2.  The evidence of record shows the applicant was appointed to the temporary grade of MSG (E-8), effective and with a DOR of 21 November 1963, and promoted to the permanent grade of MSG (E-8), effective 21 November 1965. The evidence of record also shows that the applicant served in Duty MOS 962.90 (Intelligence Chief) from 23 August 1963 through 30 November 1965.  While the evidence indicates the applicant performed duties commensurate with a higher graded duty MOS during this period, there is no evidence of record showing he was appointed, advanced, or promoted (i.e., temporary or permanent) to the grade of SGM or that he served on active duty in the grade of SGM.

3.  The evidence of record shows that the highest grade the applicant held while serving on active duty was MSG; that he satisfactorily served on active duty in the grade of MSG; and completed 20 years, 8 months, and 17 days total active service at the time of his retirement on 30 November 1965.  The evidence of record also shows that on several occasions (over the course of the 6-month period prior to being retired from active duty) the applicant authenticated several official documents and confirmed his grade of rank was that of MSG and that it was the highest grade he held while serving on active duty.

4.  By regulation, the rank and pay grade held on the date of separation from active duty will be entered in Item 3a of the DD Form 214.  The evidence of record confirms the applicant held the rank and pay grade of MSG/E-8 on the date he retired from active duty.  Thus, there is no error with respect to the entry in Item 3a and Item 3b of his DD Form 214 and the retired grade in which the applicant was placed on the Retired list is correct.  Therefore, the applicant is not entitled to correction of his records.


5.  By law and regulation, in order to be placed on the Retired list at the highest grade held, a Soldier must have 30 years of active service at the time of retirement.  The law allows for members to be advanced on the Retired list to the highest grade they held and in which they satisfactorily served on active duty when their active duty service plus time on the Retired list equals 30 years.  

6.  The evidence of record shows that the applicant's active duty service plus time on the Retired list equaled 30 years on 13 March 1975.  However, there is no evidence of record showing that the applicant was appointed, advanced, or promoted (i.e., temporary or permanent) to the grade of SGM and that he served on active duty satisfactorily in the grade of SGM.  In this regard, it is noted that performing the duties of a higher graded position, in and of itself, does not satisfy the criteria for being advanced to a higher grade on the Retired list.  The individual must have actually been appointed or promoted and served on active duty in the higher grade.  Therefore, the applicant is not entitled to advancement to the grade of SGM on the Retired list.

7.  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.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20080005745



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ABCMR Record of Proceedings (cont)                                         AR20080005745



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