BOARD DATE: 16 March 2010
DOCKET NUMBER: AR20090010866
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 that his DD Form 214 (Certificate of Release or Discharge from Active Duty) and his military records be corrected to reflect that he was retired in the rank of First Sergeant (1SG).
2. The applicant states that his records do not reflect the highest rank he held before retirement and should be corrected to reflect the rank of 1SG.
3. The applicant provides a copy of his retirement orders, a copy of his Enlisted Record Brief (ERB), and a copy of his DD Form 214.
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 21 August 1979 and remained on active duty through a series of continuous reenlistments. He was promoted to the pay grade of E-8 on 1 January 2000.
3. His records show that he completed the 1SGs course in 2000, was awarded the Special Qualification Identifier M, and that he successfully served as a 1SG in aviation units at Fort Hood, Texas from 1999 to 2001, before he assumed the duties of an aviation operations sergeant.
4. The applicant served a tour in Korea from 2002 to 2003 and returned to Fort Hood where he served as an aircraft maintenance supervisor in the rank of master sergeant.
5. On 31 August 2005, he was retired in the rank of master sergeant (MSG) and was transferred to the Retired List in the rank of 1SG, effective 1 September 2005. He had served 26 years and 10 days of total active service.
6. The applicants DD Form 214 reflects that he was in the rank of MSG and his retirement orders indicate that he was in the rank of MSG and that he was transferred to the Retired List in the rank of 1SG, effective 1 September 2005.
7. Army Regulation 635-5 serves as the authority for the preparation of the DD Form 214. It provides, in pertinent part, that the DD Form 214 will be prepared to reflect an individuals rank as it exist on the date of separation.
8. Army Regulation 635-200 serves as the authority for the separation of enlisted personnel. Paragraph 12-17 (Grade title on retired list of former first sergeants) provides that noncommissioned officers holding the grade of MSG at retirement, whose records show successful service as 1SG, will be placed on the retired list in the grade title of 1SG. 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, must possess the SQI of M, and must have served as 1SG in the grade of MSG. Service in the rank of sergeant first class does not meet the requirement.
DISCUSSION AND CONCLUSIONS:
1. The applicants contention that his DD Form 214 should be corrected to reflect his rank as a 1SG has been noted. The applicant was serving in the rank of MSG when he was retired on 31 August 2005 and his DD Form 214 correctly reflects that information.
2. The applicants retirement orders clearly show that he was retired in the rank of MSG on 31 August 2005 and that he was transferred to the Retired List in the rank of 1SG effective 1 September 2005.
3. Accordingly, his records appear to have been properly prepared in accordance with the applicable regulations. Therefore absence evidence to the contrary, there appears to be no basis to grant his request.
4. 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 the requirement.
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 Global War on Terrorism. 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.
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