Search Decisions

Decision Text

ARMY | BCMR | CY2009 | 20090003337
Original file (20090003337.txt) Auto-classification: Denied

		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 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 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





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090003337



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

Similar Decisions

  • ARMY | BCMR | CY2011 | 20110002096

    Original file (20110002096.txt) Auto-classification: Approved

    SO Number 289, dated 15 October 1968 shows he was serving in the grade of MSG/E-8 with a Date of Rank (DOR) of 1 January 1968 at the time he was laterally appointed to the grade of 1SG/E-8 effective 18 October 1968. Army Regulation 635-200 (Personnel Separations), in effect at the time, stated to enter the grade taken from item 11 of the DA Form 2339 or the grade at the time of retirement on the DD Form 214. Army Regulation 635-200, currently in effect, states there is no minimum time...

  • ARMY | BCMR | CY2006 | 20060001627C070205

    Original file (20060001627C070205.doc) Auto-classification: Denied

    The applicant requests, in effect, that he be advanced on the retired list to the rank of master sergeant (MSG), E-8. There are no orders in the applicant’s service records which show he was promoted to MSG. Title 10, U.S. Code, section 3961(b) states that, unless entitled to a higher retired grade under some other provision of law, a Regular or Reserve of the Army not covered by section 3961a) (which discusses commissioned officers) who retires other than for physical disability retires...

  • ARMY | BCMR | CY2014 | 20140003528 (2)

    Original file (20140003528 (2).txt) Auto-classification: Denied

    In 2004 he was laterally moved to the S-2 duty position as a MSG. These orders show he was permanently retired in the rank of MSG. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 12-17 (Grade Title on Retired List of Former First Sergeants), provides that a noncommissioned officer (NCO), holding the grade of MSG at retirement and whose record shows successful service as a 1SG, will be placed on the Retired List in the grade title 1SG.

  • ARMY | BCMR | CY2014 | 20140003528

    Original file (20140003528.txt) Auto-classification: Denied

    In 2004 he was laterally moved to the S-2 duty position as a MSG. These orders show he was permanently retired in the rank of MSG. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 12-17 (Grade Title on Retired List of Former First Sergeants), provides that a noncommissioned officer (NCO), holding the grade of MSG at retirement and whose record shows successful service as a 1SG, will be placed on the Retired List in the grade title 1SG.

  • ARMY | BCMR | CY2014 | 20140003528

    Original file (20140003528 .txt) Auto-classification: Denied

    In 2004 he was laterally moved to the S-2 duty position as a MSG. These orders show he was permanently retired in the rank of MSG. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 12-17 (Grade Title on Retired List of Former First Sergeants), provides that a noncommissioned officer (NCO), holding the grade of MSG at retirement and whose record shows successful service as a 1SG, will be placed on the Retired List in the grade title 1SG.

  • ARMY | BCMR | CY2010 | 20100016311

    Original file (20100016311.txt) Auto-classification: Denied

    The applicant's records contain no evidence to show he was selected for promotion to pay grade E-9. Army Regulation 135-180 (Qualifying Service for Retired Pay Nonregular Service) states that an MSG who formerly held the title of 1SG and who wishes to be shown on the Army of the United States (AUS) Retired List in his or her former title must include a copy of the appointment to 1SG with the DD Form 108 (Application for Retired Pay Benefits). In order to justify correction of a military...

  • ARMY | BCMR | CY2014 | 20140021501

    Original file (20140021501.txt) Auto-classification: Approved

    The applicant requests, in effect, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show his rank as master sergeant (MSG), his pay grade as E-8, and his date of rank (DOR) as 11 March 1985. Title 10, U.S. Code, section 3961, provides the legal authority for the retired grade of Army personnel on the Retired List. The applicant contends that his DD Form 214 should be corrected to show he retired from active duty in the grade of E-8 because he was...

  • ARMY | BCMR | CY2011 | 20110005951

    Original file (20110005951.txt) Auto-classification: Denied

    The applicant requests that his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to show his rank as a first sergeant (1SG) instead of a master sergeant (MSG). Chapter 12 of that regulation provides 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 tile grade “First Sergeant.” The only criteria for such placement on the retired list is that the Soldier...

  • ARMY | BCMR | CY2014 | 20140004208

    Original file (20140004208.txt) Auto-classification: Denied

    It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge. The regulation provides for entry of the rank and pay grade at time of separation and the effective date of pay grade at the time of separation or release from active duty. The applicant's DD Form 214 correctly lists his rank/grade and effective date of pay grade.

  • ARMY | BCMR | CY2013 | 20130018426

    Original file (20130018426.txt) Auto-classification: Denied

    On 1 March 2004, the Army Grade Determination Review Board (AGDRB) considered his request for advancement on the Retired List to E-8, as the highest grade he satisfactorily held. The evidence or record shows he was convicted by a special court-martial for wrongful marijuana usage. Army Regulation 15-80 provides that service in a higher grade will normally be considered unsatisfactory if reversion to a lower grade results from misconduct.