IN THE CASE OF:
BOARD DATE: 7 July 2009
DOCKET NUMBER: AR20090003337
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 he be advanced on the Retired List to the rank of first sergeant (1SG) in pay grade E-8.
2. The applicant states that he served approximately 2 years as the 1SG of Company A, 3rd Battalion, 5th Advanced Individual Training (AIT) Brigade while in the pay grade of E-7 and he would now like his retired pay to reflect the position he held.
3. The applicant provides two photographs of a company sign with his name on it.
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 enlisted in the Regular Army on 1 August 1950 for a period of 3 years. He completed his training as an anti-aircraft artillery crewman and served until he was honorably released from active duty in the rank of corporal on 31 July 1953, due to the expiration of his term of service (ETS).
3. He again enlisted in the Regular Army on 26 June 1954 and remained on active duty through a series of continuous reenlistments. He was promoted to the pay grade of E-7 on 27 March 1969 and on 21 September 1970, he was transferred to Fort Polk, Louisiana for assignment as a senior drill sergeant in Company A, 3rd Battalion, 5th AIT Brigade.
4. On 7 May 1971, he submitted a DA Form 2339 (Application for Voluntary Retirement) to be effective 1 November 1971. He indicated at that time that the highest grade he served in on active duty was the pay grade of E-7.
5. His application was approved and on 31 October 1971, he was honorably released from active duty in the pay grade of E-7 and was placed on the Retired List on 1 November 1971 in the pay grade of E-7. He had served 20 years, 4 months and 5 days of total active service.
6. A review of the applicant's official records failed to show that he was ever promoted to the pay grade of E-8 or appointed to the rank of 1SG.
7. Army Regulation 635-200 prescribes the policy and procedures for the separation of enlisted personnel. Paragraph 12-17 (Grade Title on Retired List of former 1SGs) stipulates that noncommissioned officers holding the rank of master sergeant (MSG) at retirement, whose records show successful service as a 1SG, will be placed on the Retired List in the rank title of 1SG. It states, in pertinent part, that the only criteria for such placement on the Retired List is that the Soldier must be serving in the rank and pay grade of MSG/E-8 and must have served as a 1SG in the rank and pay grade of MSG/E-8.
8. Title 10, U. S. Code, provides, in pertinent part, that enlisted personnel may be advanced in grade to the highest grade satisfactorily held, as determined by the Secretary of the Army, upon completing 30 years of service. This service may consist of combined active service and service in the U. S. Army Reserve Control Group (Retired).
DISCUSSION AND CONCLUSIONS:
1. 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.
2. In order to be advanced to a higher grade on the Retired List, the applicant must have at some time been properly advanced to and satisfactorily served in a higher grade prior to his being placed on the Retired List. The applicant has not submitted evidence with his application, and the evidence of record does not contain any evidence to show that he was properly promoted to a higher grade than he held at the time of retirement. Therefore, there is no basis to promote him to a higher grade or to advance him on the Retired List.
3. In view of the foregoing, there is no basis for granting the applicant's request.
BOARD VOTE:
________ ________ ________ GRANT FULL RELIEF
________ ________ ________ GRANT PARTIAL RELIEF
________ ________ ________ GRANT FORMAL HEARING
____X____ ____X____ ____X____ DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
1. 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.
2. The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Vietnam War. The applicant and all Americans should be justifiably proud of his service in arms.
_______ _ _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) AR20090003337
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ABCMR Record of Proceedings (cont) AR20090003337
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