IN THE CASE OF:	  

		BOARD DATE:	  12 May 2009

		DOCKET NUMBER:  AR20090002970 


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 his retired rank/grade title be corrected to reflect first sergeant (1SG) instead of master sergeant (MSG).

2.  The applicant states, in effect, that at the time of his retirement he was told he could not retire in the rank of 1SG, his highest rank held.

3.  The applicant provides the following documents in support of his application:  military occupational specialty (MOS) amendment orders; retirement orders; and DA Form 3713 (Data for Retired Pay), dated 3 April 1990.

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 after having prior active duty service, he reenlisted in the Regular Army on 12 April 1979.  He served in MOS 11B5M (Infantryman) and 31V5O (Unit Level Communication Maintainer).

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) confirms in item 18 (Appointments and Reductions) that he was promoted to MSG on 24 August 1982 and that he was laterally appointed to 1SG on 14 February 1983. 
It further shows that he continued to serve as a 1SG through 5 May 1985, at which time he was laterally appointed back to MSG.  Item 35 (Record of Assignments) includes entries showing he performed the duties of a 1SG from 14 February 1983 through 1 February 1985.  The final entry shows he was assigned duties as an assistant operations sergeant in the authorized grade of MSG on 1 February 1990 and he was serving in this grade and position at the time of his retirement.

4.  The applicant's official military personnel file contains Headquarters, United States Army Training Center and Fort Dix, Orders 153-18, dated 2 June 1986, which directed the applicant’s lateral appointment from 1SG to MSG.  It also contains Headquarters, United States Army Fort Dix, Orders 096-7, dated 6 April 1990, which directed the applicant’s release from active duty (REFRAD) for retirement on 30 November 1990 and his placement on the Retired List in the rank of MSG on 1 December 1990.

5.  On 30 November 1990, the applicant was honorably REFRAD for retirement after completing a total of 26 years, 10 months, and 7 days of active military service.  Item 4a of the DD Form 214 issued upon the applicant’s REFRAD for retirement contains an entry confirming he held the rank of MSG on that date.

6.  During the processing of this case a staff member of the Board contacted an official of the Defense Finance and Accounting (DFAS) to ascertain the applicant’s current rank title as shown in his DFAS record.  The DFAS official provided that the applicant’s record shows that his retired rank/grade title is MSG.

7.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) prescribes the policy and procedure for the separation of enlisted personnel.  Paragraph 12-17 (Grade title on Retired List of former 1SGs) stipulates 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.  It further states, in pertinent part, that the only criteria for such placement on the Retired List is that the Soldier must be serving in and retiring in the grade of MSG, must possess the special qualification identifier (SQI) M and must have served as a 1SG in the grade of MSG.  Service in the duty of 1SG while in the grade of sergeant first class does not meet this requirement.

8.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents which are prepared for individuals upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for preparing and distributing the DD Form 214.  Paragraph 2-4h(4), states in effect, that the active duty grade of rank and pay grade at the time of separation will be entered in Item 4a on the separation document.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his retired rank/grade title on the Retired List should be 1SG was carefully considered and found to have merit.  By regulation, noncommissioned officers holding the grade of MSG at retirement whose records show successful service as a 1SG and who possess the SQI M will be placed on the Retired List in the grade title 1SG.

2.  The evidence of record confirms the applicant held the SQI M (1SG), satisfactorily served as a 1SG for over a 2-year period, and held the rank of MSG at the time of his REFRAD for retirement.  Therefore, his records should be corrected by amending Headquarters, United States Army Fort Dix, 
Orders 096-7, dated 6 April 1990, to show he was placed on the Retired List in the rank/grade title of 1SG on 1 December 1990.

3.  In the event the applicant desired a correction be made to item 4a (Grade, Rate or Rank) of his final DD Form 214 to show the 1SG rank, he is advised that because he was performing the duties of an assistant operations sergeant in the rank of MSG at the time of his REFRAD for retirement, his rank was properly entered in item 4a of his DD Form 214 as MSG in accordance with the applicable regulation.

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 showing his retired rank/grade title as 1SG and by amending Headquarters, United States Army Training Center and Fort Dix, Orders 096-7, dated 6 April 1990, to show he was authorized to be placed on the Retired List in the rank/
grade title of 1SG on 1 December 1990.



      _________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)                                         AR20090002970



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090002970



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1