IN THE CASE OF:	  

		BOARD DATE:	  12 March 2009

		DOCKET NUMBER:  AR20090000031 


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 retired pay grade of her deceased husband, a former service member (FSM), be corrected to show sergeant first class (SFC)/E-7 instead of SFC/E-6.

2.  The applicant states, in effect, that her husband retired in the rank and grade of SFC/E-7.  However, his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) dated 31 May 1961 reflects his grade for pay as an E-6 which is a staff sergeant (SSG).  She further states that based on this error she is currently receiving her Survivor Benefit Plan annuity based on the pay grade of SSG/E-6 instead of SFC/E-7.

3.  The applicant provides the following documents in support of her application:  Headquarters, United States Army Garrison, Fort Polk, Retirement Services letter, dated 5 November 2008; copy of United States Uniformed Services Identification and Privilege Card (DD Form 1173); Certificate of Death; DD Form 214; and Department of the Army Review Boards Agency letter, dated 27 October 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 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 FSM’s record shows he completed 20 years and 6 days of active military service at the time of his release from active duty (REFRAD) for retirement on 31 May 1961.

3.  The FSM’s DA Form 24 (Service Record) covering his period of service from 27 April 1952 through his retirement date of 31 May 1961 confirms in Section I (Appointments, Promotions, or Reductions) that he was temporarily promoted to the rank and pay grade of SFC/E-6 on 15 April 1956 with an effective date of rank of 6 October 1950, and that this is the highest rank and pay grade he held and in which he served while on active duty.  It also confirms that this rank and pay grade were made permanent (P) and converted to the new grade structure of SSG/E-6 vice SFC/E-6 on 19 September 1960.

4.  On 1 June 1960, the FSM submitted a DD Form 210 (Application for Retirement).  This document confirms he requested REFRAD for retirement on 
31 May 1961 and that he held the rank and pay grade SFC/E-6 at the time.  

5.  The FSM's military personnel record contains an AGPZ Form 27 (Statement of Service Enlisted Personnel - Retirement), dated 6 June 1960, which was completed for the FSM during his retirement processing.  This document shows in item 5 that the highest rank and pay grade the FSM attained while on active duty was SFC/E-6.

6.  Department of the Army Special Order Number 117, dated 15 May 1961, authorized the FSM’s REFRAD on 31 May 1961 and his placement on the Retired List on 1 June 1961.  These orders also stipulated that he would be placed on the Retired List in the rank and pay grade of SFC/E-6.

7.  On 31 May 1961, the FSM was issued a DD Form 214.  This document lists his rank and pay grade as SFC/E-6 (P), confirming that this was the permanent rank and pay grade he held on the date of his REFRAD and in which he would be placed on the Retired List.

8.  In 1958, the Army changed the enlisted rank and grade structure.  This resulted in the rank title of master sergeant (MSG) corresponding with the pay grade of E-8, the rank title of SFC corresponding to the pay grade E-7, and the rank title of SSG corresponding to the pay grade E-6.  However, this structure change did not impact either the rank title or the pay grade of personnel who had been promoted prior to the change, which is the operative policy in this case.  In other words, unless subsequently promoted under the new system, members who had been promoted to MSG and SFC prior to the 1958 change retained those rank titles and the pay grades that were applicable prior to the change, which were E-7 for MSG and E-6 for SFC.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that the FSM’s retired grade should have been established as E-7 based on his rank title of SFC and the supporting documents she provided were carefully considered.  However, there is insufficient evidence to support this claim.

2.  At the time of the 1958 change to the Army’s enlisted rank and grade structure, the governing policy mandated that members who had been promoted to MSG and SFC prior to the 1958 change would retain those rank titles and the pay grades that were applicable prior to the change unless they were subsequently promoted under the new system.  There were no provisions for advancing a member to a higher pay grade based on a given period of service performed in his current rank and pay grade.

3.  The evidence of record confirms that the FSM was permanently promoted to the rank of SFC with a corresponding pay grade of E-6 on 19 September 1960 with an effective date of rank as 6 October 1950, and that this is the highest rank and pay grade he held on active duty.  It also verifies that he was not promoted subsequent to the 1958 Army enlisted rank and grade structure change.  He held the rank of SFC and pay grade E-6 on the date of his REFRAD for the purpose of retirement, 31 May 1961, and he was appropriately placed on the Retired List in that rank and pay grade on 1 June 1961.  Therefore, there is no error or injustice related to the FSM’s retired grade of SFC/E-6 and no basis for changing it at this time.

4.  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)                                         AR20090000031



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ABCMR Record of Proceedings (cont)                                         AR20090000031



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