BOARD DATE:	  27 April 2010

		DOCKET NUMBER:  AR20090017341 


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 all retroactive pay which he is entitled to based on retirement in the grade of E-7 with an effective date of 1 February 1996.

2.  The applicant states the Defense Finance and Accounting Service (DFAS) notified him it can only pay 6 years of the increase in retired pay that he requested on 12 May 2009.  DFAS also advised him that he owed the Government for an adjustment of his Survivor Benefit Plan (SBP).

	a.  He states he was wrongfully retired from the U.S. Army in the rank of Sergeant (SGT)/pay grade E-5 effective 1 February 1996.

	b.  He states the Army Board for Correction of Military Records (ABCMR) approved his request and changed his permanent retired rank to Sergeant First Class (SFC)/pay grade to E-7 effective 1 February 1996.

	c.  He adds he has not received all of his retroactive retired pay.  This is an error on the part of DFAS, which he was not aware of until May 2009.  He argues that, given the ABCMR's decision in his case, it is unfair to punish him by denying him the money he is entitled to.

3.  The applicant provides, in support of his application, four letters and an email message.


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 (USAR) on 21 July 1975 and enlisted in the Regular Army on 31 July 1975.

3.  Headquarters, 7th Infantry Division and Fort Ord, Fort Ord, California, Orders 141-351, dated 21 July 1983, show the applicant was promoted to Staff Sergeant (SSG)/pay grade E-6 with a date of rank (DOR) of 5 July 1983 effective 1 August 1983.

4.  A DA Form 2627 (Record of Proceedings Under Article 15, UCMJ [Uniform Code of Military Justice]), finalized on 20 July 1990, shows the punishment imposed against the applicant was reduction to SGT (E-5), forfeiture of $703 pay per month for 2 months (suspended for 2 months), and 14 days of extra duty for
2 hours per day.  Item 5 shows the commander directed the original DA Form 2627 be filed in the performance portion of the applicant's Official Military Personnel File (OMPF).  This document is filed in the restricted portion of the applicant's OMPF.

5.  The applicant was reduced to SGT (E-5) effective 2 July 1990.

6.  On 31 July 1990, the applicant was provided a copy of a DA Form 2166-7 (NCO Evaluation Report [NCOER]) for the period from March through June 1990 based on relief for cause.  He was also notified of the reason for relief.

7.  516th Personnel Service Company Orders 163-4, dated 25 July 1991, reassigned the applicant to the U.S. Army Transition Activity, Presidio of San Francisco, California, for discharge processing.

8.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant entered active duty this period on 31 July 1975 and he was honorably discharged on 31 October 1991.  At the time he had completed
16 years and 3 months of net active service this period.

9.  U.S. Army Military District of Washington, Fort Lesley J. McNair, Washington, DC, Orders 222-03, dated 20 November 1991, revoked Headquarters, 516th Personnel Service Company, Orders 163-4, dated 25 July 1991.

10.  There is no evidence the applicant was issued a DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty) or any other document to show his 31 October 1991 DD Form 214 was declared void.

11.  Headquarters, U.S. Army Enlisted Evaluation and Records Center
(PCRE-B), Fort Benjamin Harrison, Indiana, memorandum, dated 1 November 1991, shows that after a review of the applicant's OMPF, the Calendar Year 1991 Master Sergeant Selection Board determined he was to be barred from reenlistment.

	a.  The board identified an NCOER for the rating period March through June 1990 and item 33 (Reenlistment Eligibility/Ineligibility) of his DA Form 2A (Personnel Qualification Record) as areas of deficiency/weakness based on performance/efficiency.

	b.  The board identified four DA Forms 2627 as areas of deficiency/weakness based on discipline.

	c.  On 15 March 1993, the applicant was notified that a Department of the Army (DA) Standby Advisory Board (STAB) disapproved his appeal of the DA imposed bar to reenlistment.  The applicant was allowed to extend 24 months to achieve retirement eligibility. 

12.  Incorporated herein by reference is ABCMR Docket Number AC92-10584, dated 6 January 1993.

	a.  The applicant requested that the nonjudicial punishment (NJP) finalized on 20 July 1990 be set aside; the record of proceedings of the NJP be removed from his records; and that all rights, privileges, and property he lost as a result thereof be restored.  He also requested that a relief for cause NCOER covering the period March through June 1990 be removed from his records and a local bar to reenlistment be lifted.  He further requested promotion to pay grade E-7.

	b.  The ABCMR denied the applicant's request.
13.  Headquarters, Department of the Army (HQDA), Office of the Deputy Chief of Staff for Personnel (ODCSPER), Washington, DC, memorandum, dated
28 January 1993, subject:  Resolution of Unfavorable Information, shows that the Department of the Army Suitability Evaluation Board (DASEB) deliberated on the applicant's petition to transfer three records of NJP from the performance to the restricted portion of his OMPF.  The DASEB denied the applicant's request.

14.  Incorporated herein by reference is ABCMR Docket Number AC92-10584B, dated 19 October 1994.

	a.  The applicant requested reconsideration of his previous application.  Specifically, that the NJP finalized on 20 July 1990 be set aside; the record of proceedings of the NJP be removed from his records; and that all rights, privileges, and property he lost as a result thereof be restored, including his former pay grade of E-6.  He also requested that a DA bar to reenlistment imposed under the Qualitative Management Program (QMP) be removed from his records.  He further requested promotion to pay grades E-7 and E-8.

	b.  The Board noted that the applicant was allowed to extend his enlistment to remain on active duty to await the outcome of his appeals of the DA QMP bar to reenlistment and other adverse actions.  By the time the appeal processes had been completed, he was nearing completion of 18 years of total active Federal service.  The Assistant Secretary of the Army (Manpower and Reserve Affairs) [ASA (M&RA)] granted permission for the applicant to remain on active duty to earn his retirement for length of service.

	c.  The ABCMR denied the applicant's request.

15.  Incorporated herein by reference is ABCMR Docket Number AC91-10584C [sic], dated 21 June 1995.

	a.  The applicant requested reconsideration of his previous application.  Specifically, that the NJP finalized on 20 July 1990 be set aside; the record of proceedings of the NJP be removed from his records; and all rights, privileges, and property he lost as a result thereof be restored, including his former pay grade of E-6.  He also requested promotion to pay grades E-7 and E-8.

	b.  The Board noted that an Enlisted STAB denied the applicant's request to remove the DA QMP bar to reenlistment and that an Enlisted Special Review Board denied his request to remove the relief for cause NCOER.

	c.  The ABCMR denied the applicant's request.

16.  The applicant's DD Form 214 shows he entered active duty this period on
31 July 1975 and he was honorably retired on 31 January 1996.  He had completed 20 years and 6 months of net active service this period and 10 days of prior inactive service.

   a.  Item 4a (Grade, Rate, Rank) shows "SGT" and item 4b (Pay Grade) shows "E5."

   b.  Item 12 (Record of Service), block h (Effective Date of Pay Grade), shows "1990 07 02" (i.e., 2 July 1990).

17.  Headquarters, I Corps and Fort Lewis, Fort Lewis, WA, Orders 030-0017, dated 30 January 1996, show the applicant was retired in the grade of rank of SGT [E-5] and placed on the retired list effective 1 February 1996.

18.  Incorporated herein by reference is ABCMR Docket Number AC91-10584D [sic], dated 8 January 1997.

	a.  The applicant requested reconsideration of his previous application. Specifically, that the NJP finalized on 20 July 1990 be set aside and his former pay grade of E-6 be restored.  He also requested promotion to pay grades E-7 and E-8.

	b.  The Office of The Judge Advocate General (OTJAG) provided an advisory opinion that the successor-in-command had the authority to set aside the NJP and his directive should have been carried out.  OTJAG recommended that the NJP be set aside.

	c.  The Board concluded that, although the local bar to reenlistment was lifted and the NJP was set aside, the remaining bases for the HQDA QMP bar (i.e., the relief for cause NCOER and three earlier NJPs) were sufficient, in and of themselves, to sustain the DA QMP bar imposed on 1 November 1991.

	d.  The Board set aside the NJP.  It also restored all rights, privileges, and property to the applicant that were lost as a result of that NJP, including his former pay grade of E-6 with his original DOR of 5 July 1983.

	e.  The Board further directed the applicant's records be reviewed after his former grade and DOR had been restored to determine if he would have become eligible for promotion to pay grade E-7, had it not been for the subject NJP.

	     (1)  If so, and he would have met all other promotion criteria prior to the imposition of the DA QMP bar to reenlistment, appropriate action should be taken to promote him effective the earliest date he would have become eligible.  

	     (2)  If he were promoted, his name should be placed on the retired list in pay grade E-7 effective 1 February 1996.

	f.  The Board denied so much of the application in excess of the foregoing.

19.  Headquarters, U.S. Total Army Personnel Command, Alexandria, Virginia, memorandum, dated 22 July 1997, subject:  Promotion Consideration Pertaining to SSG (Retired) Edgar M---- [Social Security Number], shows the applicant was considered for promotion by the DA Enlisted STAB that adjourned on 13 June 1997, as instructed by the ABCMR in Docket Number AC91-10584D. 

	a.  The applicant was not recommended for promotion under the criteria for the Calendar Year 1990 SFC Promotion Selection Board.

	b.  Since the basis for his DA QMP selection remains a part of his OMPF, STAB consideration was only authorized for the board prior to his DA bar to reenlistment [i.e., 1 November 1991].

20.  U.S. Total Army Personnel Command, Alexandria, Virginia, memorandum to the applicant, dated 17 October 1997, shows the Chief, Enlisted Promotions Branch, notified the applicant that his records were reviewed by the STAB, but he was not recommended for promotion to SFC.  Therefore, his name cannot be placed on the retired list in the pay grade of E-7 and no further action effecting promotion to E-7 or E-8 is warranted.

21.  HQDA, Office of the ASA (M&RA), Washington, DC, letter to the applicant, dated 2 January 1998, shows he was advised the appropriate changes that were directed by the ABCMR to his records had been accomplished.  Specifically, the NJP that had been finalized on 20 July 1990 was set aside and that the relief for cause NCOER remains valid.  He was also advised that, if he was successful in any new requests to appeal his NCOER and DA bar to reenlistment, he could then request that his record be reviewed by a STAB for promotion consideration to SFC [E-7].

22.  There is no evidence the applicant was issued a DD Form 215 to show he was retired from active duty in the rank of SSG/pay grade E-6 with an effective date of pay grade of 1 August 1993.

23.  Incorporated herein by reference is ABCMR Docket Number AC91-10584E [sic], dated 24 June 1998.

	a.  The applicant requested reconsideration of his previous application.  Specifically, that the DA QMP bar to reenlistment and relief for cause NCOER be removed from his records.  He also requested promotion to pay grades E-7 and E-8.

	b.  The Board noted that the applicant was not recommended for promotion to SFC (E-7) by an Enlisted STAB that adjourned on 13 June 1997.  It also noted the [previous] Board directed that his DA QMP bar be reviewed to determine if the set aside of the [20 July 1990] NJP warranted a lifting of that bar.  This action also resulted in an unfavorable decision regarding removal of the DA QMP bar to reenlistment.

	c.  The ABCMR denied the applicant's request.

24.  On 15 July 1999, the applicant wrote to the President of the United States and requested removal of the DA QMP bar to reenlistment and relief for cause NCOER from his records.  He also requested promotion to pay grades E-7 and E-8.

	a.  The applicant's request was forwarded to the ABCMR for a response.

	b.  On 1 May 2000, the Director, Army Review Board Agency, advised the applicant his original application was previously considered and denied by the ABCMR.  A review of his application revealed that the applicant detailed his contentions once again; however, they did not amount to new evidence.   Accordingly, there was no basis for reconsideration of his request.

25.  In support of his application, the applicant provides the following documents.

   a.  A DFAS, Cleveland Center, Cleveland, Ohio, letter, dated 2 May 1997, addressed to the applicant as "Staff Sergeant Edgar L. M----, USA (Retired)."
   
        (1)  It shows, "[i]n accordance with the ABCMR and pursuant to the United States Code 1552, your permanent records have been changed to show that you were permanently retired in the pay grade of SSG/E-7 [emphasis added] vice SGT/E-6, effective February 1, 1996."

        (2)  The letter details erroneous payments for retired pay during the period 1 December 1995 to 30 January 1996 and the balance owed the Government.


	     (3)  The letter indicates an audit performed on his account for the period
1 February 1996 to 30 March 1997 revealed that he is entitled to E-7 pay in an amount greater than that previously paid to him as an E-6.  It also identifies an overcharge for SBP costs, along with an SBP credit.

	     (4)  The letter also outlines the process for settling the retired pay due against the debt he owed based on payment of the applicant in pay grade E-7.

   b.  A letter from the applicant to DFAS, dated 12 May 2009, in which he stated that he retired from the U.S. Army on 1 February 1996.  He wrote, "I was wrongfully retired as a SGT/E-6 and submitted a request to the [ABCMR] and my request was approved changing me to permanently retired, in the pay grade of
E-7 effective 1 February 1996."  He confirms that he received the DFAS letter, dated 2 May 1997, and states "I had the letter and never until yesterday read it."  He requests reinstatement of his E-7 retired pay and all back pay.

   c.  A DFAS, Retired and Annuity Pay, letter, dated 2 July 2009, addressed to the applicant as "SFC Edgar L. M----, USA (Retired)."
   
        (1)  It states, "[i]n accordance with the [ABCMR], we have corrected your record to reflect that you retired with the rank of SFC (E-7)."

        (2)  The letter shows the resulting change in gross pay for the period from
1 February 1996 through 31 May 2009.

	     (3)  The letter indicates that "[b]ased on the Statute of Limitations (6 Year Barring Statute) we can only pay 6 years of the increase in retired pay."  It shows that the 6 years is counted from the date DFAS received the applicant's inquiry (12 May 2009).  He was advised that the resulting adjusted retired pay credit would be mailed to him in the near future.

   d.  A letter from the Honorable Adam S----, U.S. House of Representatives, to the Honorable Louis Caldera, Secretary of the Army, dated 10 August 1999.

	     (1)  The Congressman states the DA QMP bar to reenlistment and relief for cause NCOER were both administered based on the July 1990 NJP.  He states "[the applicant] was successful in having the Article 15 [NJP] removed from his military records pursuant to an opinion from the ABCMR.  The Article 15 was removed because it was found to have been a clear injustice and improperly administered."

        (2)  He also states the applicant asserts that the ABMCR's grounds for upholding the DA QMP bar to reenlistment and relief for cause NCOER did not address actions within the rating period and were inadequate to justify the failure to remove those records.

        (3)  He adds the applicant requests promotion to pay grades E-7 and E-8.  He further requests placement on the retired list as a Sergeant Major/pay grade E-9 and all back pay and allowances due him as a result of such action.

   e.  An email message from Mr. Alex S----, Retirement Services Officer, Joint Base Lewis-McChord, Washington, dated 6 April 2010, subject:  [Applicant].  He argues that the applicant's records were not corrected in accordance with the ABCMR directive prior to being reviewed by the Enlisted STAB on 13 June 1997.  He alleges "[t]his is important because the E-7 Standby board adjourned on
13 June 1997, so when they reviewed [the applicant's] records all the negative information had not been corrected.  As a result we believe this is why he was not recommended to E-7."  He provides a copy of the applicant's U.S. Army Reserve record maintained on the U.S. Army Human Resources Command (USA HRC) document portal at:  www.hrc.army.mil/portal.

26.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial (MCM).  Chapter 3 (Nonjudicial Punishment) implements and amplifies Article 15, UCMJ, and Part V, MCM.

   a.  Paragraph 3-28 (Setting aside and restoration) provides that this is an action whereby the punishment or any part or amount, whether executed or unexecuted, is set aside and any rights, privileges, or property affected by the portion of the punishment set aside are restored.  NJP is "wholly set aside" when the commander who imposed the punishment, a successor-in-command, or a superior authority sets aside all punishment imposed upon an individual under Article 15.  The basis for any set aside action is a determination that, under all the circumstances of the case, the punishment has resulted in a clear injustice.  "Clear injustice" means that there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier.  An example of clear injustice would be the discovery of new evidence unquestionably exculpating the Soldier.  Clear injustice does not include the fact that the Soldier's performance of service has been exemplary subsequent to the punishment or that the punishment may have a future adverse effect on the retention or promotion potential of the Soldier.
   
   b.  Paragraph 3-3 (Relationship of NJP to nonpunitive measures) provides that NJP is imposed to correct misconduct in violation of the UCMJ.
   
        (1)  Such conduct may result from intentional disregard of or failure to comply with prescribed standards of military conduct.

        (2)  Nonpunitive measures usually deal with misconduct resulting from simple neglect, forgetfulness, laziness, inattention to instructions, sloppy habits, immaturity, difficulty in adjusting to disciplined military life, and similar deficiencies.  These measures are primarily tools for teaching proper standards of conduct and performance and do not constitute punishment.  Included among nonpunitive measures are denial of pass or other privileges, counseling, administrative reduction in grade, administrative reprimands and admonitions, extra training, bar to reenlistment, and military occupational specialty (MOS) reclassification.  Certain commanders may administratively reduce enlisted personnel for inefficiency and other reasons.  This authority exists apart from any authority to punish misconduct under Article 15.
   
        (3)  These two separate and distinct kinds of authority should not be confused.

27.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes policies and procedures governing promotion and reduction of Army enlisted personnel.

   a.  Chapter 4 (Centralized Promotions – Sergeant First Class, Master Sergeant, and Sergeant Major) provides the rules and steps for managing the Centralized Promotion System.
   
        (1)  Section IV (Task:  Processing Request for Standby Advisory Board Consideration), paragraph 4-13 (Rules), shows that STABs are convened to consider records of those Soldiers whose records were not reviewed by a regular board and/or Soldiers whose records were not properly constituted, due to material error, when reviewed by the regular board.

        (2)  This paragraph shows that a STAB will normally be granted when an Article 15 punishment that was wholly set aside on or after 1 September 1979 was filed on the OMPF when reviewed by the board.
   
28.  Army Regulation 600-8-104 (Military Personnel Information Management/ Records) prescribes policies, operating tasks, and steps governing the OMPF, Military Personnel Records Jacket (MPRJ), Career Management Individual File (CMIF), Personnel Qualification Records, and Military Personnel Information Management as a work category.

   a.  Chapter 2 governs the maintenance of the OMPF.  Paragraph 2-3 (Composition of the OMPF) provides that depending on the purpose, the documents will be filed in one of three sections; performance, service, or restricted.

        (1)  Table 4-1 (Composition of the OMPF) shows that a DA Form 2627 issued on or after 1 November 1982 will be filed in the performance or restricted portion of the OMPF as directed by the filing instructions in item 5 of the DA Form 2627.  If the Article 15 is wholly set aside and is filed in the performance portion, move it to the restricted portion.

        (2)  Paragraph 2-6 (Release of restricted data filed in the OMPF) provides that restricted data will not be given to any other person or agency, without the approval of the Commanding General, USA HRC or DA selection board proponent.

        (a)  Although not a routine procedure, the restricted portion may be released to DA selection boards.  The board president will request permission from the ODCSPER, to review specific restricted information when he or she believes the information is crucial to the selection process (such as, it is required to protect the interest of the Army or an individual under consideration).

        (b)  The board president will make this request in writing (unless waived by the Director of Military Personnel Management (DMPM), ODCSPER or designated representative) through the supporting DA Secretariat.  Approval authority on these requests rests with the DMPM, ODCSPER, or designated representative.

	b.  Chapter 6 shows the MPRJ was eliminated for the Active Army.  

30.  The U.S. Army Interactive Personnel Electronic Records Management System (iPERMS) portal at:  https://iperms.army.mil/ hosts the U.S. Army's OMPF and delivers it via the Internet for viewing of documents by the individual and authorized officials.  The iPERMS stores digital documents pertaining to the individual authorized under Army Regulation 600-8-104, Table 2-1 (OMPF) in one of three sections (i.e., performance, service, or restricted).  The documents reviewed for promotion consideration under the HQDA Centralized Promotions system are those that are filed in the performance portion of the Soldier's OMPF. 

31.  Title 31, U.S. Code, section 3702, also known as the barring statute, prohibits the payment of a claim against the Government unless the claim has been received by the Comptroller General within 6 years after the claim accrues.  Among the important public policy considerations behind statutes of limitations, including the 6-year limitation for filing claims contained in this section of Title 31, U.S. Code, is relieving the government of the need to retain, access, and review old records for the purpose of settling stale claims, which are often difficult to prove or disprove.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he should receive all retroactive pay which he is entitled to based on retirement in the grade of E-7 with an effective date of
1 February 1996.  He also contends the relief for cause NCOER and DA QMP bar to reenlistment should be removed from his OMPF and he should be promoted to the grades of E-7, E-8, and E-9.

2.  The DA Form 2627, finalized on 20 July 1990, shows it was to be filed in the performance portion of the applicant's OMPF.

   a.  On 8 January 1997, the ABCMR set aside the NJP and restored the applicant's former pay grade of E-6 with a DOR of 5 July 1983.

	b.  The Board directed the applicant's records be reviewed after his former grade and DOR had been restored to determine if he would have become eligible for promotion to pay grade E-7, had it not been for the subject NJP [emphasis added].

	c.  The DA Form 2627 was transferred and is filed in the restricted portion of the applicant's OMPF. 

	d.  The applicant was not recommended for promotion to SFC (E-7).

	e.  There is no evidence of record, and the applicant provides insufficient evidence, that the [20 July 1990] DA Form 2627 filed in the restricted portion of his OMPF was provided to the Enlisted STAB in June 1997.  Moreover, given the decision and directive of the ABCMR, it defies logic that the applicant's records would be referred to the STAB with the NJP document that was determined to have caused the material error meriting review by a STAB.  Therefore, the applicant's contention in this instance is unfounded and without merit. 

3.  The applicant received a relief for cause NCOER for the period March through June 1990 under appropriate authority.  This nonpunitive action was separate and distinct from the NJP he received under Article 15.

   a.  The ABCMR considered the removal of the NCOER on three separate occasions.  The ABCMR denied removal of the NCOER from the applicant's records.
   
   b.  The applicant provides no new evidence that warrants removal of the NCOER from his records.

   c.  In view of the foregoing, there is no basis for removing the NCOER.

4.  On 1 November 1991, a DA QMP bar to reenlistment was imposed against the applicant.  The action was based on his NCOER for the rating period March through June 1990, item 33 of his DA Form 2A, and four DA Forms 2627.

   a.  The applicant's appeal of the DA imposed bar to reenlistment was denied on 15 March 1993.
      
   b.  The ABCMR considered the removal of the DA QMP bar to reenlistment on three separate occasions, once which also considered the ABCMR's decision to set aside the NJP.  The ABCMR denied removal of the DA QMP from the applicant's records in all three instances.  The Board's last decision was based on the NCOER and three remaining DA Forms 2627 [emphasis added] filed in the performance portion of the applicant's OMPF.

	c.  The applicant provides no new evidence that warrants removal of the
DA QMP bar to reenlistment.

   d.  In view of the foregoing, there is no basis for removing the DA QMP.

5.  A review of matters relating to the applicant's retired pay grade shows the following.

	a.  The applicant's DD Form 214 and separation orders placed him on the retired list in the grade of rank of SGT (E-5) with a DOR of 2 July 1990 effective
1 February 1996.

   b.  On 8 January 1997, the ABCMR restored all rights, privileges, and property to the applicant that were lost as a result of the NJP that it set aside, including his former pay grade of E-6 with his original DOR of 5 July 1983 (and an effective date of 1 August 1983).

   c.  On 2 May 1997, DFAS notified the applicant that his records had been changed to show he was permanently retired in the pay grade of SSG/E-7 [emphasis added] vice SGT/E-6 [the correct pay grade] effective February 1, 1996.

   d.  On 22 July 1997, the Chief, Enlisted Promotions Branch, notified the applicant his records were reviewed by the STAB, but he was not recommended [emphasis added] for promotion to SFC [E-7].

   e.  In his application to the ABCMR for reconsideration (Docket Number AC91-10854E, dated 24 June 1998), the applicant acknowledged he was retired in pay grade E-6.

   f.  On 12 May 2009, the applicant contended to DFAS that "[he] was wrongfully retired as a SGT/E-6 and submitted a request to the [ABCMR] and [his] request was approved changing me to permanently retired, in the pay grade of E7 effective 1 February 1996."  He also stated that "I had the [DFAS, 2 May 1997] letter and never until yesterday read it."  He requested retired pay and all back pay based on a retired pay grade of E-7.

   g.  On 2 July 2009, DFAS notified the applicant it had "corrected [his] record to reflect that he retired with the rank of SFC (E-7)."  However, based on the Statute of Limitations (6 Year Barring Statute), DFAS could only pay 6 years of the increase in retired pay from the date DFAS received the applicant's inquiry (12 May 2009).
   
   h.  Records confirm the applicant's former rank (SSG) and pay grade (E-6), along with his original DOR of 5 July 1983, was restored by the ABCMR on
8 January 1997 while he was on the retired list.  As a result, he is entitled to:

	     (1)  pay grade E-6 active duty pay and allowances (less any deductions and withholdings) from 2 July 1990 through 31 January 1996; and
   
        (2)  pay grade E-6 retired pay (less any deductions and withholdings) from 1 February 1996 to the present.
   
6.  There is no evidence a DD Form 215 or other document was issued declaring the applicant's 31 October 1991 DD Form 214 void.  Therefore, it would be appropriate to issue an appropriate document declaring the DD Form 214 void.

7.  There is no evidence a DD Form 215 was issued to correct the rank, grade, and effective date of pay grade shown on the applicant's 31 January 1996
DD Form 214.  Therefore, it would be appropriate to issue a DD Form 215 showing the corrections.

8.  The applicant was notified that his former pay grade (E-6) had been restored and that he was not selected for promotion to E-7.  The applicant acknowledged this fact in a subsequent application to this Board.  However, there is no evidence the applicant took any action to clarify this matter with DFAS when he was erroneously informed that his records were changed to show the grade of  E-7.  In fact, the evidence shows the applicant incorrectly stated to DFAS that the ABCMR "approved changing me to permanently retired, in the pay grade of E-7 effective 1 February 1996."  Consequently, the applicant knowingly contributed to the erroneous information and the resultant improper payments made to him by DFAS.  As a result, any debt that may result from a recalculation of the applicant's pay based on approval of his application by this Board is deemed not to warrant relief or remission.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x___  ___x_____  ___x_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:
1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

a. issuing the applicant a DD Form 215 or other document declaring his
31 October 1991 DD Form 214 void;

   b.  showing the applicant's former rank (SSG) and pay grade (E-6) were restored, along with his original DOR of 5 July 1983 and effective date (1 August 1983) while he was on the retired list; and

   c.  issuing the applicant a DD Form 215 to correct his 31 January 1996
DD Form 214 by:

(1) deleting from item 4a the entry "SGT" and adding the entry "SSG";

(2) deleting from item 4b the entry "E5" and adding the entry "E-6"; and

        (3)  deleting from item 12h, the entry "1990  07  02" and adding the entry "1993  08  01"; and

   d.  as a result of the above actions, he is entitled to:

	     (1)  pay grade E-6 active duty pay and allowances (less any deductions and withholdings) from 2 July 1990 through 31 January 1996; and

        (2)  pay grade E-6 retired pay (less any deductions and withholdings) from 1 February 1996 to the present.

2.  As a result of the above correction, the Defense Finance and Accounting Service shall be notified of the Board's determination and conduct an audit of the applicant's retired pay account to determine if there is any debt owed the Government.  Accordingly, based on the facts surrounding this case, any debt that may result from a recalculation of the applicant's pay based on approval of his application by this Board does not warrant relief or remission.

3.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends:

	a.  denial of so much of the application that pertains to removal of the relief for cause NCOER, DA QMP bar to reenlistment, or any documents related to these actions from his OMPF; 

b.  denial of promotion to E-7, E-8, and/or E-9; and

   c.  denial of relief due to any debt that may result from a recalculation of the applicant's pay based on approval of his application by this Board.



      _______ _   _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)                                         AR20090017341



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ABCMR Record of Proceedings (cont)                                         AR20090017341



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