IN THE CASE OF:
BOARD DATE: 21 October 2008
DOCKET NUMBER: AR20080010532
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 the records of her deceased spouse, a former service member (FSM), be corrected to show his retirement pay grade as E-8 vice E-7.
2. The applicant states, in effect, that it is her belief the FSM retired as a master sergeant (MSG) and not as a sergeant first class (SFC). She asks for an audit of his pay record and to be provided all back retired pay due as a result.
3. The applicant provides the following documents in support of her application: photograph; Certificate of Death; Marriage License; Certificate of Retirement; and North Carolina Department of Administration letter, dated 11 June 2008.
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 applicants 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 applicants 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 record shows he served in the Georgia Army National Guard (ARNG) from 25 November 1947 through 3 December 1968, at which time he was honorably discharged from the ARNG and transferred to the Retired Reserve in the rank of platoon sergeant/sergeant first class (PSG/SFC), pay grade E-7.
3. The FSM's Enlisted Qualification Record (DA Form 20) shows, in Item 33 (Appointments and Reductions), that he was promoted to SFC (pay grade E-6) on 11 September 1952 and to MSG (pay grade E-7) on 1 August 1957. It also shows that on 1 August 1957, he was laterally appointed to PSG/SFC pay grade E-7.
4. The FSM's record contains a Data for Retired Pay (DA Form 3713), dated 19 July 1991, which was prepared during the applicant's processing for retirement. Item 3 (Retired Grade) shows the FSM retired in the rank and pay grade of SFC/E-7, and Item 8 (Highest Grade Attained) shows that SFC/E-7 was the highest grade the FSM attained during military service.
5. The FSM's record also contains United States Army Reserve Personnel Center Orders Number P-07-005425, dated 16 July 1991, which directed the FSM's placement on the Retired List in the rank and pay grade SFC/E-7 on 7 October 1991.
6. The Army Enlisted Grade Structure in effect from 1 July 1955 through 31 May 1958 identified the following rank titles for the pay grades indicated: pay grade E-4 - corporal (CPL); pay grade E-6 - sergeant first class (SFC); and pay grade E-7 - master sergeant (MSG). On 1 June 1958, the Army adopted an enlisted grade structure that provided corresponding ranks of SFC for pay grade E-7, MSG for the pay grade E-8, and sergeant major (SGM) for the pay grade
E-9.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that the FSM's retired pay should be based on the pay grade of E-8 because he held the rank title of MSG was carefully considered. However, there is insufficient evidence to support this claim.
2. Prior to 1 June 1958, there was no pay grade of E-8 and the rank title MSG corresponded to the pay grade of E-7. From 1 June 1958, the rank title of SFC/PSG has corresponded to the pay grade of E-7, and the rank title of MSG has corresponded to the pay grade of E-8. In this case, the evidence of record confirms the FSM was transferred to the Retired Reserve in the rank title of PSG/SFC and the pay grade of E-7. It also shows that he was placed on the Retired List in the rank and pay grade of SFC/E-7, which is the highest grade he held during his military service. There appears to be no error or injustice related to the retired grade upon which the FSM's retired pay was based. As a result, there is an insufficient evidentiary basis to support granting the requested relief.
3. 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) AR20080010532
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ABCMR Record of Proceedings (cont) AR20080010532
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