IN THE CASE OF:	  

		BOARD DATE:	  17 November 2009

		DOCKET NUMBER:  AR20090010701 


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 reinstated on the recommended list for promotion to pay grade E-8 in July 1997, promoted to E-8, and placed on the retired list in pay grade E-8.

2.  The applicant states he was erroneously removed from the master sergeant (MSG)/E-8 promotion selection list.  He adds that he retired early and was never found guilty of the charges against him.

3.  The applicant provides no additional documentary evidence 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 enlisted in the U.S. Army Reserve on 15 January 1981, enlisted in the Regular Army on 30 January 1981, and served continuously on active duty through 31 March 1998.

3.  Headquarters, U.S. Total Army Personnel Command, Alexandria, Virginia, Order Number 186-9, dated 20 November 1990, shows the applicant was promoted to the rank of sergeant first class (SFC)/pay grade E-7 with a date of rank of 1 October 1990.

4.  Headquarters, U.S. Army 5th Recruiting Brigade, San Antonio, Texas, memorandum, dated 8 November 1995, shows the applicant was serving in a promotable status (i.e., SFC (P)), frocked to wear the insignia of first sergeant, and assigned the principal duty of First Sergeant, U.S. Army Recruiting Battalion, San Antonio, TX, effective 8 November 1995.  This document also shows the applicant's identification cards and official records to include his DA Form 2A and 2-1 will not be changed to the rank/grade of first sergeant.

5.  Headquarters, U.S. Army Fifth Recruiting Brigade, Fort Sam Houston, Texas, Orders 233-2, dated 22 August 1996, show the applicant was attached to the 961st Quartermaster Company, McAllen, Texas, effective 20 August 1996, pending trial by court-martial.

6.  Headquarters, U.S. Army Recruiting Command, Fort Knox, Kentucky, memorandum, dated 2 October 1996, subject:  Reprimand, shows that the Commanding General reviewed the Commander's Inquiry, dated 2 July 1996, regarding the applicant's inappropriate relationship with a woman and that the applicant was reprimanded for his misconduct.  This document also shows the letter of reprimand was imposed as an administrative measure and not as punishment under Article 15, Uniform Code of Military Justice.

   a.  The applicant's responded to the letter of reprimand by requesting that it be withdrawn, that the flag be removed from his records, and that his name be restored to the MSG (E-8) promotion list.

   b.  On 20 December 1996, the Commanding General reviewed the reprimand imposed against the applicant, along with the applicant's rebuttal with supporting documents and the recommendations of the chain of command, and directed the reprimand be filed in the applicant's Official Military Personnel File (OMPF).

 7.  Headquarters, U.S. Army Enlisted Records and Evaluation Center, Indianapolis, Indiana, memorandum, dated 14 February 1997, subject:  Certification of OMPF pertaining to SFC [Applicant's Name and Social Security Number], shows that copies of the records in the applicant's OMPF were released to the Staff Judge Advocate, U.S. Army Trial Defense Service, Fort Sam Houston, Texas, for use in an elimination action.

8.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was honorably retired from active duty on 31 March 1998, under the provisions of Army Regulation 635-200, chapter 12, based on voluntary early retirement, and transferred to the U.S. Army Reserve Control Group (Retired).  At the time he had completed 17 years, 2 months, and 1 day of total active service.  Item 4a (Grade, Rate or Rank) shows the entry "SFC," item 4b (Pay Grade) shows the entry "E7," and item 12 (Record of Service), block h (Effective Date of Pay Grade) shows the entry "1990 10 01."

9.  There is no evidence the applicant was reinstated on the MSG/E-8 promotion selection list.  In addition, there are no orders or other evidence that shows he was promoted to the grade of E-8.  There is also no evidence that shows the applicant was placed on the Retired List in the grade of E-8.

10.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes policy and procedures governing promotion and reduction of Army enlisted personnel.  This Army regulation provides that:

   a.  Soldiers on promotion lists who are assigned to 1SG positions before they can be promoted may be frocked.  Do not issue orders or new identification cards or change official records to show a frocked grade.  Do not issue a DA Form 4872 (Certificate of Promotion to Noncommissioned Officers) until the Soldier is actually promoted; and

   b.  a Soldier removed from a promotion selection list and later considered exonerated will be reinstated on the promotion selection list.  To be considered exonerated, the action that caused the initial removal must have been erroneous or should not have been imposed.
   
11.  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.

12.  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.

13.  Army Regulation 635-5 (Personnel Separations - Separation Documents), in effect at the time of the applicant's separation from active duty, prescribed the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It also established standardized policy for preparing and distributing the DD Form 214.  Chapter 2 contains guidance on the preparation of the DD Form 214.  It states, in pertinent part, that the source documents for entering information on the
DD Form 214 will be the Personnel Qualification Record, Officer Record Brief, enlistment/reenlistment documents, personnel finance records, discharge documents, separation orders, Military Personnel Records Jacket, or any other document authorized for filing in the OMPF.

14.  Table 2-1 (DD Form 214 Preparation Instructions) of the Separation Documents regulation contains item-by-item instructions for completing the
DD Form 214.  The instructions for:

   a.  Item 4a and Item 4b state enter active duty grade or rank and pay grade at time of separation; and

	b.  Item 12, block h, states enter the effective date of promotion to pay grade.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his records should be corrected to show he was reinstated on the recommended list for promotion to pay grade E-8 in July 1997, promoted to grade E-8, and placed on the Retired List in grade E-8 because he was never found guilty of the charges against him.

2.  The applicant was promoted to the rank of SFC (E-7) on 1 October 1990.  He was selected for promotion to E-8, assigned to the principal duty of First Sergeant on 8 November 1995, and frocked to wear the insignia of First Sergeant.

3.  The evidence of record shows the applicant was pending trial by court-martial, a written reprimand was imposed as an administrative measure, and the letter of reprimand was filed in his OMPF.  The applicant’s name was also removed from the E-8 promotion selection list.

4.  There is no evidence, and the applicant provides insufficient evidence to support his contention, that the action that caused the applicant' s removal from the E-8 promotion selection list was erroneous or should not have occurred.

5.  Records show the applicant held the grade of E-7 when he was honorably retired from active duty on 31 March 1998.
 
6.  By regulation, the rank and pay grade held on the date of separation from active duty will be entered in item 4a and item 4b of the DD Form 214.  The evidence of record confirms the applicant held the rank and pay grade of SFC
(E-7) on the date he retired from active duty.  Thus, there is no error with respect to the entries in item 4a and item 4b of his DD Form 214.  In addition, 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.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X___  ____X___  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.



      _______ _   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)                                         AR20090010701



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ABCMR Record of Proceedings (cont)                                         AR20090010701



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