IN THE CASE OF:
BOARD DATE: 21 January 2009
DOCKET NUMBER: AR20080011543
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) of his
30 June 1998 DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show his rank was first sergeant (1SG) vice master sergeant (MSG) as is currently listed.
2. The applicant states, in effect, that Orders Number 110-0273 were amended to show his retired rank as 1SG.
3. In support of his application, the applicant provides copies of his retirement orders and amended retirement orders.
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 applicant's military records show he enlisted in the Regular Army on 8 February 1978. He was promoted to MSG on 1 January 1994, with the same date of rank. He was laterally appointed to the rank of 1SG on 4 March 1994, with a date of rank of 1 January 1994.
3. The applicant's records and Item 38 (Record of Assignments) of his DA Form 2-1 shows he served as a 1SG from 5 February 1994 through 23 October 1994. He served as a MSG from 24 October 1994 through the date of his release from active duty (REFRAD) for retirement on 30 June 1998.
4. On 19 August 1997, the applicant submitted an Application for Voluntary Retirement (DA Form 2339) requesting retirement. This document shows his current grade as MSG, E-8, in Item 5 (Current Grade, Pay Grade, Date of Rank and MOS), and shows that E-8 was the highest grade he served in on active duty in Item 6 (Highest Grade Served on Active Duty and Branch of Service).
5. Department of the Army, XVIII Airborne Corps and Fort Bragg Orders Number 231-0305, dated 19 August 1997, authorized the applicants release from active duty on 30 June 1998 and his placement on the Retired List on the following day. These orders show his current grade and retired grade as MSG.
6. Department of the Army, XVIII Airborne Corps and Fort Bragg Orders Number 110-0273, dated 20 April 1998, authorized amendment of the applicant's retired grade from MSG to 1SG.
7. The applicant was honorably REFRAD on 30 June 1998, for the purpose of retirement after completing a total of 20 years, 4 months, and 23 days of active military service. The DD Form 214 he was issued at the time shows his rank as MSG in Item 4a.
8. Army Regulation 635-5 prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army. It establishes standardized policy for the preparation of the DD Form 214. In pertinent part, it states the DD Form 214 is a synopsis of the Soldiers most recent period of continuous active duty. It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.
DISCUSSION AND CONCLUSIONS:
1. In view of the circumstances in this case, the applicant is not entitled to a correction to Item 4a of his DD Form 214. He has not shown error, injustice, or inequity for the relief he now seeks.
2. By regulation, the rank and pay grade held on the date of separation from active duty will be entered in Item 4 of the DD Form 214. The evidence of record confirms the applicant held the rank and pay grade of MSG/E8 on the date of his release from active duty for retirement. Therefore, there is no error in the entry in Item 4a of his DD Form 214.
3. In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise 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) AR20080011543
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ABCMR Record of Proceedings (cont) AR20080011543
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