IN THE CASE OF:
BOARD DATE: 19 March 2009
DOCKET NUMBER: AR20080016507
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, restoration of his rank to command sergeant major (CSM).
2. The applicant states, in effect, that after his tenure as a CSM expired he voluntarily accepted a lateral move to a sergeant major (SGM) Individual Mobilization Augmentee (IMA) position with restoration rights to CSM. However, before that move actually occurred, he was informed the position was no longer available. Since no suitable position was available he transferred to the Retired Reserve.
3. The applicant provides copies of Army Reserve Personnel Command (AR-PERSCOM) Orders C-043095524, dated 1 April 2003; AR-PERSCOM Orders C-04-309524A01, dated 1 April 2003; DA Form 4187 (Personnel Action), dated 2 April 2003; and AR-PERSCOM Orders C-05-313959, dated 28 May 2003.
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, a U.S. Army Reserve (USAR) career noncommissioned officer, was assigned, in July 1999, as the CSM to the 914th Medical Hospital, a troop program unit (TPU) in Ohio. When his allowed tenure in that position ended, he sought another assignment . He was voluntarily transferred, as a SGM, to the USAR Control Group (Reinforcement). The orders noted: "Soldier retains CSM reappointment rights."
3. However, when the assignment he had hoped to get failed to materialize he requested retirement.
4. AR-PERSCOM Orders C-05-313959, dated 28 May 2003, released the applicant from the USAR Control Group (Reinforcement) and transferred him to the Retired Reserve in the rank of SGM.
5. Army Regulation 135-205 (Army National Guard and Army Reserve Enlisted Personnel Management), provides, in pertinent part, that the losing commander must initiate reclassification action (from CSM to SGM) when a CSM voluntarily withdraws from the CSM program. An exception to this requirement is a CSM who requests transfer to the Retired Reserve.
DISCUSSION AND CONCLUSIONS:
1. The applicant states that his rank should be restored to CSM.
2. Because the applicant had sought another assignment after his tenure as a CSM ended, he was laterally appointed to SGM. Because that assignment failed to materialize, he transferred to the Retired Reserve less than two months later. However, because he was a SGM at the time of transfer, he was properly transferred to the Retired Reserve in the rank of SGM. When he applies for retired pay, he could request assignment to the Retired List as a CSM.
3. However, the applicant never actually performed any duty after assignment to the Control Group (Reinforcement). Considering the short period of time from the date he was laterally appointed as a SGM to the date he transferred to the Retired Reserve, it would be in the interest of justice to show the applicant was transferred to the Retired Reserve before his appointment as a SGM, allowing him to be transferred in the rank of CSM.
BOARD VOTE:
____X___ ___X ___ ___X___ 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 voiding his April 2003 appointment as a SGM and his subsequent transfers to the USAR Control Group (Reinforcement) and Retired Reserve in the rank of SGM and showing he was transferred directly to the Retired Reserve from his CSM assignment in the rank of CSM.
___________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) AR20080016507
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ABCMR Record of Proceedings (cont) AR20080016507
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