IN THE CASE OF:	  

		BOARD DATE:	        28 May 2009

		DOCKET NUMBER:  AR20080015393 


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 her DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 30 April 2004 be corrected to read 1SG (First Sergeant) vice MSG (Master Sergeant), as is currently listed.  The applicant also requests 
that her record be corrected to show that she did not enroll her husband for Survivor Benefit Plan (SBP) spouse coverage after her retirement. 

2.  The applicant states, in effect, that she served as a 1SG during her active duty time and her records do not reflect the highest rank held as per Army Regulation 635-200 (Personnel Separations – Active Duty Enlisted Administrative Separations).  The applicant further states that a monthly deduction is being taken out of her retired pay for SBP and that is not what she requested.  She submitted a request for cost information on 11 February 2008 and her paperwork was processed instead.  She is now requesting disenrollment. She adds that she was told by a telephone representative at the Defense Finance and Accounting Service (DFAS) to send a notarized and signed DD Form 2656-6 (SBP Election Change Certificate) along with a copy of her marriage certificate in order to get the monthly cost of SBP.  She also sent a letter of explanation, but somehow the details of her request were misunderstood and monies are being deducted from her retired pay.  She finally states that it was not her intent to make an election without knowing the initial monthly cost; therefore, she is asking that the deduction be stopped immediately.


3.  The applicant provides a copy of her DD Form 214; a copy of her DD Form 2656-6; a copy of a letter she addressed to the DFAS - Cleveland Center, Retired and Annuity Pay, dated 6 February 2008; and a copy of a memorandum to the applicant from Headquarters, 130th Engineer Brigade, dated 28 May 1998.

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 she enlisted in the Regular Army (RA) on 10 December 1982 and initially trained in military occupational specialty (MOS) 57H (cargo handler).  She remained on active duty through a series of reenlistments and serving in a variety of assignments until she was honorably retired by reason of sufficient service for retirement.

3.  The applicant's Enlisted Record Brief shows she was promoted to sergeant first class on 1 October 1993.  Headquarters, 130th Engineer Brigade memorandum, dated 28 May 1998 (sic – should read 1997), appointed the applicant to assume the duties and responsibilities as 1SG and frocked her to the same rank effective the same date.  In 1998 the applicant completed the 2-week 1SG Course and was awarded special skill identifier (SQI) "M" that indicates she is 1SG qualified.  She was subsequently promoted to MSG on 1 November 1998 while still serving in an authorized 1SG position, thereby retaining her appointed 1SG rank.  The applicant remained in the 1SG position until her reassignment on 26 February 1999, at which time she was laterally appointed back to MSG.

4.  The applicant's Noncommissioned Officer Evaluation Report (NCOER) for the period from June 1998 through February 1999 shows her principal duty title as "First Sergeant."

5.  Headquarters, Fort McPherson, GA, Orders 223-0106 (Corrected Copy), dated 11 August 2003, in pertinent part, were published releasing the applicant from active duty for the purpose of retirement, effective 30 April 2004, and placing her on the retired list on 1 May 2004 in the retired grade of rank of 1SG.

6.  The applicant's record shows that on 30 April 2004, the applicant was honorably retired by reason of sufficient service for retirement after completing a total of 21 years, 4 months, and 21 days of active military service.  Item 4a of the DD Form 214 she was issued shows the entry "MSG."  At the time of retirement the applicant had no dependents and no SBP coverage.

7.  In February 2007, the applicant married.  On 6 February 2008, the applicant addressed a letter to the DFAS-Cleveland Center.  The letter stated, "To Whom It May Concern:  This is an initial request in an attempt to sign up for Survivor Benefit Plan (SBP).  This is due to the fact that I got married after retirement.  I am attaching a signed and notarized copy of DD Form 2656-6 and marriage certificate.  I would like to know the cost (monthly/yearly) of coverage.  Please send the info via email or fax to the following."

8.  The applicant's record contains a DD Form 2656-6 that was signed by the applicant and witnessed on 11 February 2008.  In Section IV (Requested Change to Coverage) of this form, the applicant elected "spouse only" SBP coverage.  In Section V (Level of Coverage), she elected "Full Retired Pay."  In Section VIII (Member Signature), she signed her application on 11 February 2008, which was witnessed and notarized on the same day.

9.  A review of the applicant's DFAS file reveals that SBP premiums are being automatically deducted from the applicant's retired pay.  The deduction started on 1 March 2008.

10.  Public Law 92-425, the SBP, enacted on 21 September 1972, provided that military members could elect to have their retired pay reduced to provide for an annuity after death to surviving dependents.  

11.  Public Law 105-85, enacted 18 November 1997, established the option to terminate SBP participation.  Retirees have a one-year period, beginning on the second anniversary of the date on which their retired pay started to withdraw from SBP.  The spouse’s concurrence is required.  No premiums will be refunded to those who opt to disenroll.  

12.  Title 10, U. S. Code, section 1448(d)(5)(A)(B) states that, in the case of a person who marries after retirement:  A person who is not married and has no dependent child upon becoming eligible to participate in the Plan but who later marries or acquires a dependent child may elect to participate in the Plan.  Such an election must be written, signed by the person making the election, and received within one year after the date on which that person marries or acquires that dependent child      

13.  Army Regulation 635-200, chapter 12 (Retirement for Length of Service), sets policies and procedures for voluntary retirement of Soldiers because of length of service and governs the retirement of Soldiers who are retiring in their enlisted status.  Paragraph 12-17 (Grade title on retired list of former first sergeants) states that noncommissioned officers holding the grade of MSG at retirement, whose records show successful service as a 1SG, will be placed on the retired list in the grade title, 1SG.  The only criteria for such placement on the retired list are:

   a.  the Soldier must be serving in and retiring in the grade of MSG;
   
b.  the Soldier must possess special qualification identifier "M”; and

c.  the Soldier must have served as 1SG in the grade of MSG.  No minimum time period is specified.  Service in the duty position of 1SG while in the grade of sergeant first class does not meet this requirement.

14.  Army Regulation 600-8-19, paragraph 7-11 (Lateral appointments) states, in pertinent part, that a MSG will be appointed to 1SG concurrent with assignment or attachment to an authorized 1SG position.  It further states that a 1SG will be appointed to MSG when –

	a.  Reassigned or attached to positions not authorized a 1SG; or

	b.  Detailed or attached to a duty that does not require a 1SG on other than a       very short, interim basis (fewer than 30 days);

15.  Army Regulation 635-5 (Personnel Separations – Separation Documents), prescribes the separation documents that will be furnished each individual separated from the Army and establishes standardized procedures for the preparation and distribution of these documents.  The purpose of a separation document is to provide the individual with documentary evidence of his/her 
military service.  It is a vital record for interested Government agencies which assist the veteran in obtaining the rights and benefits to which he/she is entitled.  Therefore, it is important that information entered is complete and accurate.  It also established standardized policy for the preparation of the DD Form 214.  It states that for item 4a, enter the active duty grade or rank and pay grade at the time of separation from the ERB.


DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that her rank on her DD Form 214 should be 1SG was carefully considered.    

2.  For Soldiers whose records show retirement in the rank of MSG, award of SQI "M," and successful service as a 1SG, their retirement orders will reflect the retired grade of rank of "1SG" and they will also be placed on the retired list in that rank.  However, item 4a of the Soldier's DD Form 214 will reflect his/her rank at the time of separation.

3.  Although the applicant did in fact serve in an authorized 1SG position during her tenure of service, she was laterally appointed back to MSG upon relinquishing her 1SG position in February 1999.  Her DD Form 214 appropriately reflects her grade at time of separation as MSG and her retirement orders also appropriately reflect her retired grade of rank as 1SG.  Therefore, there is no basis for granting the applicant's request for relief on her rank issue.

4.  A review of the applicant's DFAS records show that since 1 March 2008, SBP premiums are being automatically deducted from the applicant's retired pay.  Although the applicant sent a properly completed SBP form, it appears her sole intent was to first obtain information as to SBP costs and then, only if the cost was acceptable, have the form processed.

5.  Therefore, as a matter of equity the applicant's records should be corrected to show she never enrolled in the SBP, and she should be refunded the SBP premiums that have already been deducted from her retired pay account.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

_____X___  ____X____  ___X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing she never enrolled in the SBP and refunding to her all SBP premiums that have already been deducted from her retired pay account.

2. The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to amending her DD Form 214 to show her rank at the time of separation as 1SG.



      _________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)                                         AR20080015393



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ABCMR Record of Proceedings (cont)                                         AR20080015393



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