IN THE CASE OF:	  

		BOARD DATE:	  6 May 2010

		DOCKET NUMBER:  AR20090018054 


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 DD Form 214 (Report of Transfer or Discharge) for the period ending 30 June 1969 to show he retired as a first sergeant (1SG)/E-8.

2.  The applicant states if he had received proper counseling and guidance at the time of his retirement he would have elected to retire as a 1SG instead of a master sergeant (MSG)/E-8.

3.  The applicant provides:

* DD Form 214
* Letter of Commendation
* Letter of Appreciation

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.  Having prior active service in the Regular Army, the applicant enlisted in the Regular Army on 16 November 1950.  He remained on active duty through continuous reenlistments.  He was promoted to the rank MSG on 20 December 1961.  Headquarters, Seventh Army Support Command, Special Orders Number 77, dated 1 April 1967, show the applicant was awarded primary military occupational specialty (MOS)12Z5O (combat engineer senior sergeant).  The applicant's DA Form 2339 (Application for Voluntary Retirement), dated
11 June 1968, shows in item 11 (Highest Grade Served on Active Duty) the entry "MSG, E-8."  On 30 June 1969, the applicant retired in the rank of MSG.

3.  Headquarters, Department of the Army Special Orders Number 60, dated 
28 March 1969, released the applicant from active duty on 30 June 1969 and, on the date following, placed him on the retired list and transferred him to the U.S. Army Reserve (Retired Reserve) in the rank of MSG.

4.  The applicant's DD Form 214 for the period ending 30 June 1969 shows his rank as MSG.

5.  His DA Form 20 (Enlisted Qualification Record) shows he was promoted to MSG with a date of rank of 20 December 1961.  This record does not show completion of a "First Sergeant Course" or award of SQI "M," which is awarded to Soldiers in the rank of sergeant first class (SFC) promotable or MSG who successfully complete the Department of the Army First Sergeant Course.
It does show he assumed the duties of 1SG during the period 26 March 1959 through 1 June 1961 with Company E, 3rd Engineer Battalion in U.S. Army, Europe (Germany).

6.  In support of his claim, the applicant provided a Letter of Commendation, dated 18 January 1960, wherein he was commended for his outstanding performance as 1SG for the period 28 April 1959 to 10 January 1961.

7.  Army Regulation 600-200 (Enlisted Personnel Management System), paragraph 2-41a (lateral appointments), in effect at the time, stated noncommissioned officers (NCOs) might be laterally appointed from one NCO grade to another within the same pay grade when change of duty required.  Change of duty for an E-8 required lateral appointment to/from Master Sergeant/First Sergeant.  This regulation also stated special qualification identifier for First Sergeant was "M."

8.  Army Regulation 635-200 (Enlisted Personnel, Personnel Separations), chapter 12, currently in effect, states that NCOs holding the rank of MSG at retirement, whose records show successful service as a 1SG, will be placed on the retired list in the grade title first sergeant.  The only criteria for such placement on the retired list are:

   a.  the Soldier must be serving as, and retiring as, a Master Sergeant,
   
   b.  Soldier must possess special qualification identifier "M," and
   
   c.  the Soldier must have served as a 1SG/E-8 (service as a 1SG while a Sergeant First Class (SFC)/E-7 does not qualify).

9.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.  It also establishes standardized policy for the preparation of the DD Form 214.  It states, for item 5, enter the active duty rank at the time of separation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends if he had received proper counseling and guidance at the time of his retirement he would have elected to retire as a 1SG instead of an MSG.

2.  The applicant provided a Letter of Commendation which shows he successfully served as 1SG during the period 28 April 1959 to 10 January 1961.  However, since he did not possess special qualification identifier of "M," he did not meet the criteria for placement on the retired list as a 1SG.

3.  All official orders in the applicant's records show the rank of MSG.  The documents he completed in preparation for his length of service retirement all indicated his highest rank on active duty as MSG.

4.  Although his DA Form 20 and the letters submitted with his application confirm he served as a 1SG from 26 March 1959 through 1 June 1961, he was not promoted to E-8 until 20 December 1961.  In order to be placed on the retired list as a 1SG, he would have had to have completed the prescribed DA First Sergeant Course and awarded SQI "M" and have served as a 1SG as an E-8  However, his records do not show and he did not provide any evidence to show he attained these criteria.  Therefore, he was appropriately released from active duty in the rank of MSG and placed on the retired list on 1 July 1969 in the same rank.

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)                                         AR20090018054



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ABCMR Record of Proceedings (cont)                                         AR20090018054



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