IN THE CASE OF:	  

		BOARD DATE:	        23 September 2008

		DOCKET NUMBER:  AR20080011817 


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 military records be corrected to show his retired rank as First Sergeant.

2.  The applicant states, in effect, that he wants his retired rank changed from Master Sergeant to First Sergeant.  He states that he served in the capacity of First Sergeant from 1968 through 1977 in various assignments and was promoted to First Sergeant in 1973.   

3.  The applicant provides no additional documentation in support of this case.

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 enlisted in the Regular Army on 8 July 1957.  He was promoted to E-8 on 11 May 1973.  His E-8 promotion orders are not available; however, military occupational specialty orders dated 2 August 1973 indicate he was promoted to Master Sergeant.  On an unknown date in 1973, he was laterally appointed to First Sergeant.  

3.  The applicant's DA Form 2-1 (Personnel Qualification Record Part II) shows he served as First Sergeant from August 1972 through October 1974. 

4.  The applicant was laterally appointed back to Master Sergeant effective 
21 October 1974.

5.  The applicant retired on 31 July 1977.  Headquarters, 7th Infantry Division and Fort Ord Orders 069-152, dated 19 March 1977, released him from active duty and, on the date following, placed him on the retired list with a retired rank of Master Sergeant.

6.  The applicant's DD Form 214 (Report of Separation from Active Duty) with the period ending 31 July 1977 shows his rank as Master Sergeant.  

7.  Under the current Army Regulation 635-200 (Enlisted Personnel, Personnel Separations), chapter 12 states that noncommissioned officers holding the grade of Master Sergeant at retirement, whose records show successful service as a First Sergeant, will be placed on the retired list in the grade title First Sergeant.  The only criteria for such placement on the retired list are: (1) the Soldier must be serving as, and retiring as, a Master Sergeant; (2) the Soldier must possess special qualification identifier (SQI) "M"; and (3) the Soldier must have served as a First Sergeant as an E-8 (service as a First Sergeant while a Sergeant First Class, E-7, does not qualify).  SQI “M” was not implemented until sometime after 1974.

8.  Army Regulation 635-200, in effect at that time of the applicant's retirement, did not have provisions for noncommissioned officers holding the grade of Master Sergeant at retirement, whose records showed successful service as a First Sergeant, to be placed on the retired list in the grade title First Sergeant. 




9.  Army Regulation 611-201 (Enlisted Career Management Field and Military Occupational Specialties) provides policy and criteria concerning special qualification identifiers that are authorized for use with military occupational specialties.  It states that the character "M" identifies First Sergeants in positions of company, battery, or similar sized units.  To qualify, the Soldiers must meet requirements outlined in Army Regulation 614-200 and successfully complete the Department of the Army First Sergeant Course or serve satisfactorily in a First Sergeant position for 120 or more consecutive days.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected to show his retired as First Sergeant.  Evidence of record shows he was promoted to Master Sergeant and laterally appointed to First Sergeant sometime in 1973.  He successfully performed his duties in a First Sergeant position for more than 
1 year and was laterally appointed back to Master Sergeant on 21 October 1974.

2.  The applicant retired on 31 July 1977 and was placed on the retired list in the rank of Master Sergeant.  There were no regulatory provisions at the time he retired that authorized changing his retired rank to First Sergeant on the retired list.  However, under today's standards the applicant would have met all the requirements to have his rank changed to First Sergeant on the retired list.  

3.  The applicant served his country for 20 years with distinction; therefore, based on a matter of equity he should be granted relief as an exception to policy.  In view of the circumstances in this case, the applicant's rank should be changed to First Sergeant on the retired list.

BOARD VOTE:

____xx__  __xx____  __xx____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION






BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by changing his rank to First Sergeant on the retired list.




      _______ _xxxx______   ___
               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)                                         AR20080011817





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ABCMR Record of Proceedings (cont)                                         AR20080011817



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