IN THE CASE OF:	  

		BOARD DATE:	  25 September 2008

		DOCKET NUMBER:  AR20080009489 


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, that Item 4a (Grade, Rate, or Rank) and Item 13 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) of his separation document
(DD Form 214) be corrected.

2.  The applicant states, in effect, that Item 4a of his DD Form 214 should be corrected to show his rank title as command sergeant major (CSM) and 
Item 13 should be corrected by adding the Legion of Merit (LOM).

3.  The applicant provides a copy of his Retirement Orders and LOM Certificate in support of his request.

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 personnel records show that on 30 November 1987, the applicant was honorably released from active duty for the purpose of length of service retirement after completing a total of 20 years, 5 months, and 24 days of active military service.   

4.  The applicant's Personnel Qualification Record (DA Form 2-1) shows he was promoted to the rank of sergeant major (SGM) on 11 January 1972, and that he was appointed a CSM on 1 August 1972.  It also shows that was laterally appointed from CSM to SGM on 6 June 1979, and that he was serving as a SGM at the time of his REFRAD for retirement on 30 November 1987.  

5.  The applicant's record contains a Personnel Action (DA Form 4187) which shows that the applicant submitted a request for retirement on 6 May 1987.  Section I (Personal Identification) contains an entry which shows the applicant held the rank of SGM at that time.

6.  On 18 August 1987, Headquarters, United States Army Support Command, Hawaii, issued Orders Number 181-15, which directed the applicant’s release from active duty (REFRAD) on 30 November 1987, and his placement on the Retired List on 1 December 1987.  These orders list the applicant's rank as CSM in the standard name line and authorize a retired grade of rank of CSM/E-9.  

7.  On 4 November 1987, Headquarters, United States Army Support Command, Hawaii issued Orders 241-1, which amended their Orders 181-15 dated 18 August 1987, to show the rank of “SGM” in the standard name line and the “Retired Grade of Rank” of SGM/E-9.  

8.  The applicant's record contains no orders, or other documents that indicate he was ever recommended for, or awarded the LOM.

9.  The DD Form 214 issued to the applicant on 30 November 1987, the date of his REFRAD for retirement, lists his rank title as SGM in Item 4a, and does not include the LOM in Item 13.  The applicant authenticated this document with his signature in Item 21 (Signature of Member Being Separated).  

10.  The applicant provides a LOM Certificate, dated 7 February 1989, which shows he was awarded the LOM for meritorious service by the Chief, Army Reserve.  


11.  Army Regulation 635-200 prescribes the policy and procedure for the separation of enlisted personnel.  Paragraph 12-16 (Grade Title on Retired List of former CSMs) stipulates that noncommissioned officers (NCOs) holding the grade title of SGM at retirement will be placed on the retired list in the grade title of CSM if their records reflect honorable service as a CSM and they were released from the CSM Program, voluntarily or involuntarily, because of an assignment-limiting medical or physical condition, or to serve as SGM in any duty assignment.

12.  Army Regulation 635-5 prescribes the separation documents which are prepared for individuals upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for preparing and distributing the DD Form 214.  Paragraph 2-4h(4), states in effect, that the active duty grade of rank and pay grade at the time of separation will be entered in Item 4a on the separation document.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that Items 4a and 13 of his separation should be corrected has been carefully considered.  However, there is insufficient evidence to support this claim.

2.  The evidence of record confirms the applicant was performing the duties in the rank of SGM on the date of his REFRAD, as evidenced by his DA Form 2-1, his request for retirement on the DA Form 4187, and as indicated in official orders published specifically to amend the applicant’s rank to reflect SGM instead of CSM.  It is clear that he was not serving as a CSM on the date of his REFRAD.  As a result, in accordance with the applicable regulation, Item 4a of his DD Form 214 correctly reflects the rank of SGM, which is the rank he held on the date of his REFRAD.  

3.  The applicant is advised that although no change to Item 4a (the rank he held on the date of his REFRAD) of his DD Form 214 is authorized, his rank title on the Retired List should reflect CSM.  He may use this document if necessary to ensure his correct retired rank title of CSM is properly recorded with the Defense Finance and Accounting Service and on his military identification card.

4.  The evidence of record also fails to include any documents or orders to show that the applicant was ever recommended for or awarded the LOM during his active duty tenure.  Lacking any evidence of record (orders etc.) corroborating the information contained on the LOM certificate provided by the applicant, this document alone does not provide a sufficient evidentiary basis to support adding the LOM to his separation document at this time.  
5.  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

___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)                                         AR20080009489



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ABCMR Record of Proceedings (cont)                                         AR20080009489



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