IN THE CASE OF:	  

		BOARD DATE:	          17 September 2009

		DOCKET NUMBER:  AR20090006052 


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 correction of his records to show he was appointed to the rank of command sergeant major (CSM)/pay grade E-9 and that he was placed on the Retired List in the rank of CSM (E-9).

2.  The applicant states, in effect, he believes he satisfactorily performed the duties of CSM prior to his departure from his last duty assignment and that his commander submitted him for appointment to CSM.

	a.  He served overseas in U.S. Army Europe (USAREUR) and was assigned to the 3rd Missile Battalion, 21st Artillery, on 11 September 1966, with duty in the operations section.  He adds he received a letter of commendation from the outgoing battalion commander on 7 February 1967.

	b.  He then served as the operations sergeant with two different captains in the operations section until he was promoted to sergeant major (SGM)/pay grade E-9 on 10 October 1967.  He then transferred to the 3rd Battalion, 35th Artillery.

	c.  He served in the 35th Artillery under three commanders.  The last commander recommended him for the Meritorious Service Medal and also presented him with a letter of commendation prior to his departure from USAREUR.  He adds that he returned to the United States and retired from active duty on 30 September 1969.

	d.  After he retired from active duty he was invited to judge military competitions at LaSalle Military Academy in Oakdale, Long Island, New York; was invited to apply for a position as a Junior Reserve Officers' Training Corps (ROTC) instructor at the school; and was subsequently hired by Headquarters, First ROTC Regional Command.  He also states he was appointed as the Senior Army Instructor at the Academy in 1991.  He adds that he retired in September 1994 after 18 years as a Junior ROTC instructor and 3 years as a senior Army instructor, and he was presented the Commander's Award for Public Service.

3.  The applicant provides copies of two letters of commendation; the reverse side of a DA Form 638 (Recommendation for Award) with a proposed citation; Headquarters, VII Corps, USAREUR, General Orders Number 93, dated 3 September 1969; a letter of appreciation; and a DA Form 5231 (Commander's Award for Public Service) in support of his application.

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 entered active duty in the Regular Army on 7 October 1948 and he was honorably discharged on 6 October 1951.  After a break in service he enlisted in the Regular Army and entered active duty on 21 July 1952.

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows in:

	a.  item 2 (Grade) the entry "SGM E-9";

	b.  item 3 (Date of Rank) the entry "29 SEP 67";

	c.  item 31 (Foreign Service) that he served overseas in USAREUR in Germany from 10 September 1966 through 17 September 1969;

	d.  item 33 (Appointments and Reductions) that he was promoted to the grade of SGM (E-9) (Temporary) per Headquarters, 72nd Artillery Group, USAREUR, Special Orders Number 162 (1967);

	e.  item 38 (Record of Assignments) that he was assigned to Headquarters and Service Battery, 3rd Battalion, 21st Artillery, USAREUR, from 15 September 1966 through 10 October 1967 with principal duty as an operations sergeant in duty military occupational specialty (MOS) 13Z5O.  He was then assigned to Headquarters Battery, 3rd Battalion, 35th Artillery, USAREUR, from 11 October 1967 through 16 September 1969 with principal duty as a sergeant major in duty MOS 13Z5O;

   f.  item 47 (Signature of Individual) that the applicant’s signature with the entry "SGM E9, 13 MAY 68"; and
   
   g.  item 48 (Date of Audit) the entry "Aug 68."

4.  Headquarters, 72nd Artillery Group, USAREUR, Special Orders Number 162, dated 29 September 1967, show, in pertinent part, the applicant was promoted to the temporary grade of SGM (E-9) in MOS 13Z5O effective and with a date of rank of 29 September 1967.

5.  Headquarters, 72nd Artillery Group, USAREUR, Special Orders Number  63, dated 2 October 1967, show the applicant was reassigned from Headquarters and Service Battery, 3rd Battalion, 21st Artillery, USAREUR, to Headquarters Battery, 3rd Battalion, 35th Artillery, USAREUR, for duty as Battalion SGM effective 10 October 1967.

6.  A DA Form 2339 (Application for Voluntary Retirement), dated 13 December 1968, shows in item 4 (Current Grade, Pay Grade, Date of Rank and MOS) the entry "SGM E-9  29 Sep 67  13Z5O" and item 11 (Highest Grade Served on Active Duty) contains the entry "SGM E-9."  The block titled "Signature of Applicant" of the DA Form 2339 shows that the applicant authenticated the information recorded on this document by placing his signature in this item.

7.  Headquarters, 3rd Battalion, 35th Field Artillery, USAREUR, Special Orders Number 131, dated 11 August 1969, show the applicant was reassigned on 17 September 1969 from Headquarters Battery, 3rd Battalion, 35th Field Artillery, USAREUR, to the continental United States (CONUS) for separation processing.  The orders show the applicant's rank at the time was SGM.

8.  Headquarters, Department of the Army, Washington, DC, Special Order Number 187, dated 29 September 1969, shows the applicant was released from active duty on 30 September 1969 in the grade of SGM (E-9) and placed on the Retired List in the grade of SGM (E-9) effective 1 October 1969.

9.  The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was honorably retired from active duty on 30 September 1969 and transferred to the U.S. Army Reserve Control Group (Retired).  At the time he had completed 20 years, 1 month, and 20 days of total active service.  Item 5a (Grade, Rate or Rank) contains the entry "SGM (P)" [Permanent], item 5b (Pay Grade) contains the entry "E-9," and item 6 (Date of Rank) contains the entry "29 Sep 67."  Item 32 (Signature of Person Being Transferred or Discharged) shows the applicant authenticated the DD Form 214 with his signature on the date of his separation.

10.  There is no evidence in the applicant's military personnel records that shows his commander submitted a recommendation for his appointment to CSM.

11.  There are no orders or other evidence that show the applicant was appointed, advanced, or promoted to the rank of CSM or that he served on active duty in a CSM position.  There is also no evidence that shows the applicant was placed on the Retired List in the grade of CSM (E-9).

12.  Title 10, U.S. Code, section 3961, provides the legal authority for the retired grade of Army personnel on the Retired List.  It states, in pertinent part, that unless entitled to a higher retired grade under some other provision of law, a Regular or Reserve of the Army who retires other than for physical disability retires in the regular or reserve grade that he or she holds on the date of his or her retirement.

13.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time the applicant retired from active duty, provided the authority for the separation of Soldiers from the Active Army.  Chapter 12 (Retirement), paragraph 12-3 (General provisions of laws governing retirement), provided, in pertinent part, that retirement will be in the regular or reserve grade the member holds on the date of retirement in accordance with Title 10, U.S. Code, section 3961.

14.  Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time the applicant retired from active duty, prescribed policies and procedures regarding separation documents.  It also established standardized policy for preparing and distributing the DD Form 214.  Section III (Instructions for Preparation and Distribution of the Armed Forces of the United States Report of Transfer or Discharge) contains guidance on the preparation of the DD Form 214.  It states, in pertinent part, that all available records will be used as a basis for the preparation of the DD Form 214, including the Enlisted Qualification Record, Officer Qualification Record, and orders.

   a.  Item 5a (Grade, Rate or Rank) states for enlisted personnel to enter the grade in which serving at the time of separation, indicating whether permanent or temporary (e.g., "SGM (P)" or "SGM (T)").

	b.  Item 5b (Pay Grade) states for enlisted personnel to enter the pay grade (e.g., "E-9").

	c.  Item 6a (Date of Rank) states for enlisted personnel to enter date of rank for the grade shown in item 5a.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show he was appointed to the rank of CSM while serving on active duty and that he was placed on the Retired List in the rank of CSM (E-9) effective 1 October 1969.

2.  The applicant was promoted to the rank of SGM (E-9) effective and with a date of rank of 29 September 1967.

3.  Subsequent to his promotion to SGM, the applicant was reassigned to Headquarters Battery, 3rd Battalion, 35th Artillery, where he served in duty MOS 13Z5O (sergeant major) from 11 October 1967 through the date of his departure from USAREUR for separation processing in CONUS.

4.  There is no evidence showing the applicant was appointed, advanced, or promoted to the rank of CSM (temporary or permanent), or that he served on active duty in the rank of CSM.

5.  The evidence of record shows that the highest rank the applicant held while serving on active duty was SGM and that he completed 20 years, 1 month, and 20 days of total active service at the time of his retirement on 30 September 1969.  The evidence of record also shows that on several occasions (over the course of the 12-month period prior to retiring from active duty) the applicant authenticated official documents and confirmed his grade was that of SGM (E-9) and that it was the highest grade he held while serving on active duty.

6.  By regulation, the rank and pay grade held on the date of separation from active duty will be entered in item 5a and item 5b of the DD Form 214.  The evidence of record confirms the applicant held the rank and pay grade of SGM (E-9) on the date he retired from active duty.  Thus, there is no error with respect to the entries in item 5a and item 5b of his DD Form 214.  The retired grade in which the applicant was placed on the Retired List is correct.  Therefore, the applicant is not entitled to correction of his records in this case.

7.  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.  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 our Nation.  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)                                         AR20090006052



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ABCMR Record of Proceedings (cont)                                         AR20090006052



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