IN THE CASE OF:	  

		BOARD DATE:	        15 October 2008

		DOCKET NUMBER:  AR20080010262 


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 his service records be located and correction of his retired grade to sergeant major (SGM)/E-9.  

2.  The applicant states, in effect, that he was reassigned from the Retired Reserve to the Ready Reserve by authority of Department of the Army, Office of the Adjutant General, U.S. Army Administration Center, St. Louis, MO Letter Orders Number 07-20141, dated 26 July 1971, in the rank of SFC.  He was subsequently relieved from the Ready Reserve back to the Retired Reserve by authority of Headquarters, 5th U.S. Army, Fort Sam Houston, Texas Orders
93-218, dated 12 November 1976, in the rank of SGM. 

3.  The applicant provided a copy of Letter Orders Number 07-20141, dated
26 July 1971; and Orders 93-218, dated 12 November 1976, in support of his application. 

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.  With prior service in the U.S. Air Force and the Regular Army, the applicant’s records show he enlisted in the Regular Army for a period of 3 years on 5 April 1954.  He subsequently executed two 6-year reenlistments on 11 October 1955 and 6 December 1961, and a 3-year reenlistment on 6 December 1967.  

3.  The applicant’s records also show he was promoted to specialist five (SP5)/E-5 (Temporary) on 3 May 1961; staff sergeant (SSG)/E-6 (Permanent) on 12 February 1962; SFC (Temporary) on 29 August 1966; and SFC (Permanent) on 29 August 1969.  He was honorably retired in his retired grade of SFC on 31 August 1969.

4.  The applicant’s records do not contain orders that show he was promoted beyond the rank of SFC.

5.  On 5 April 1971, the applicant requested to be transferred from the Retired Reserve to the Ready Reserve in order to continue his employment as a civilian technician in the Headquarters, 300th Military Police Prisoner of War (POW) Command.

6.  On 20 July 1971, it was noted that a special finding determined that the applicant’s services were indispensable to the Ready Reserve, based on employment as a USAR technician.  Accordingly, on 26 July 1971, Office of the Adjutant General, St. Louis, Missouri, published Letter Orders 07-20141, relieving the applicant from the USAR Control Group (Retired) and reassigning him in his SFC grade to the 300th Military Police POW Command, effective 20 July 1971.

7.  The applicant's records indicate that he served in the Ready Reserve and as a USAR technician from 20 July 1971 to 12 November 1976.  

8.  On 12 November 1976, Headquarters, Fifth U.S. Army, Fort Sam Houston, Texas, published Orders 93-218, relieving the applicant from the USAR (Ready Reserve) for assignment to the 434th Field Artillery Group, Chicago, Illinois, and reassigning him to the USAR Control Group (Retired Reserve), in the rank of SGM, effective 16 August 1976, for failure to be selected by the 1976 Enlisted Qualitative Retention Board.

9.  The facts and circumstances of the applicant's transfer from the 300th Military Police POW Command to the 434th Field Artillery Group, his SGM rank, and his non-selection by the 1976 Enlisted Qualitative Retention Board, are not available for review with this case.

10.  10 USC 3914 provides the legal authority for the retirement of enlisted members with at least 20, but less than 30 years of active military service.

11.  10 USC 3961(b) provides guidance on retired grades for Soldiers who retire for reasons other than physical disability.  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/she holds on the date of retirement.

12.  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 officer 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.  (emphasis added)

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms that the applicant, while on active duty in the Regular Army, was promoted to SFC/E-7 on 29 August 1969, and that this is the highest rank and pay grade he held on active duty.  There is no evidence in his service records that he was promoted beyond this grade during his active duty service.  He held the rank/grade of SFC/E-7 on the date of his release from active duty for the purpose of retirement on 31 August 1969, and was placed on the Retired List in that rank/grade on 1 September 1969. 

2.  The rank of SGM shown on the applicant's transfer from the Ready Reserve to the Retired Reserve has no impact on the applicant's retired grade since the applicant did not hold the rank of SGM while on active duty.  By law, 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/she holds on the date of retirement.

3.  By law and regulation, in order to be placed on the Retired List at the highest grade held 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 and time on the Retired List equals 30 years.  However, the applicant never held an active duty grade beyond that of SFC/E-7.  
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.


															XXX
      ______________________
               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)                                         AR20080010262



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ABCMR Record of Proceedings (cont)                                         AR20080010262



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