IN THE CASE OF:	  

		BOARD DATE:	  27 October 2009

		DOCKET NUMBER:  AR20090008719 


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 rank shown in item 4a (Grade, Rate, or Rank) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) that was issued at the time of his retirement be changed from master sergeant (MSG) to first sergeant (1SG).

2.  The applicant essentially states that his highest rank held was 1SG and that his retirement orders retired him in the rank of 1SG, but his DD Form 214 shows his rank as MSG.

3.  The applicant provides his retirement orders which placed him of the retired list in the rank of 1SG in support of this 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's military records show that he was promoted to the rank of MSG/pay grade E-8 with an effective date of 1 November 1985 and a date of rank of 31 October 1985.

3.  Although all of the applicant's lateral appointment orders are not present in his military records, item 18 (Appointments and Reductions) of his DA Form 2-1 (Personnel Qualification Record - Part II) shows that he was laterally appointed from MSG/E-8 to 1SG/E-8 effective 30 July 1987 and that he was laterally appointed from 1SG/E-8 to MSG/E-8 effective 19 December 1991.  On 
31 August 1992, he was again laterally appointed from MSG/E-8 to 1SG/E-8 and on 27 October 1993, he was laterally appointed back to MSG/E-8.

4.  XVIII Airborne Corps, Fort Bragg, NC, Orders Number 142-0254, dated
21 May 1996, released the applicant from active duty on 31 December 1996 and placed him on the retired list on 1 January 1997.  These orders show that his retired grade of rank and pay grade was 1SG/E-8.

5.  Item 4a of the applicant’s DD Form 214 shows that his rank and pay grade at the time of his retirement was MSG/E-8.

6.  Paragraph 12-17 (Grade title on retired list of former first sergeants) of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), the current enlisted separations regulation, as well as the version of this regulation in effect at the time of the applicant's retirement, 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 also states 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, the Soldier must possess Skill Qualification Identifier "M" (for 1SG), and the Soldier must have served as a 1SG in the grade of MSG.

7.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the active Army.  Chapter 2 contains guidance on the preparation and distribution of the DD Form 214.  This paragraph states that for item 4, the active duty grade or active duty rank and pay grade at the time of separation will be entered.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his rank shown in item 4a of his DD Form 214 that was issued at the time of his retirement should be changed from MSG to 1SG.
2.  While it is clear that the applicant successfully served as a 1SG during his military career, he was laterally appointed from 1SG to MSG prior to his retirement.  

3.  Although the applicant contends that his rank shown on his DD Form 214 should have read 1SG instead of MSG, evidence of record shows that his rank at the time of his retirement was MSG, not 1SG.  In accordance with the governing regulation for the preparation of the DD Form 214, the entry of MSG, as this was his rank at the time of his retirement, not 1SG, is the proper entry of this form.

4.  However, the applicant’s retirement orders are also correctly prepared in accordance with governing regulations, and these orders properly show his retired grade of rank as 1SG.  

5.  The applicant is advised that a copy of this decisional document along with his application and the supporting evidence he provided, which confirms that his retired grade of rank is 1SG, will be filed in his Official Military Personnel File.  This should serve to clarify any questions or confusion in regard to the difference in rank between his retirement orders, which properly reflect his retired grade of rank as 1SG, and his DD Form 214, which accurately reflects that his rank at the time of his retirement was MSG.

6.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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.  While the Board regrets that a more favorable response could not be accomplished, it wants the applicant and all others to know that the sacrifices he made in service to the United States throughout his military career are deeply appreciated.  The applicant and all Americans should be justifiably proud of his honorable 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)                                         AR20090008719



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ABCMR Record of Proceedings (cont)                                         AR20090008719



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